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Court of AppealDismissedCivil Appeal No. 66 of 2019· [2020] KECA 160 (KLR)

Alka Roshanlal Harbanslal Sharma & another v Theresa Constabir [2020] KECA 160 (KLR)

Court of Appeal of Kenya
20 November 2020
DMD. K. MusingaPKP. O. KiageSKS. Gatembu Kairu
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you must raise every claim in your first lawsuit — courts will strike out suits that revisit settled disputes.

What this practically means

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Executive summary

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The appellants, legal representatives of the estate of Kulta Hanspal (deceased), appealed against a ruling of Olola, J. of the Environment and Land Court at Malindi delivered on 14th March 2019 in ELC Case No. 233 of 2017, upholding a preliminary objection that their suit was res judicata and striking it out with costs. The suit sought a permanent injunction restraining the respondent from dealing with five plots at Vipingo and surrender of provisional certificates of title issued in November 2016, which the appellants claimed to hold as security for a Kshs.800,000 loan advanced by the deceased to the respondent in 1988. The same parties had previously litigated proprietorship of the plots in ELC No. 39 of 2013, decided in the respondent's favour in November 2013, and in ELC Miscellaneous Application No. 24 of 2014, which Angote, J. struck out; that decision was overturned by this Court in Civil Appeal No. 44 of 2014 on 11th December 2015, which held the matter res judicata. The Court of Appeal, in a single judgment of the court (Musinga, Kiage and Gatembu Kairu JJ.A.), applied section 7 of the Civil Procedure Act and its 4th explanation, and the doctrine of res judicata as articulated in IEBC v Maina Kiai, holding that the issues in the 2017 suit were not new and ought to have been raised in the earlier proceedings. The Court affirmed the ruling below, dismissed the appeal, and awarded costs to the respondent.

Key legal issues

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01

Whether ELC No. 233 of 2017 was res judicata under section 7 of the Civil Procedure Act

Holding

The suit was res judicata in view of ELC No. 39 of 2013 and Civil Appeal No. 44 of 2014; the issues raised were not new and ought to have been raised in the earlier proceedings.

Reasoning

Applying section 7 of the Civil Procedure Act and its 4th explanation, the Court reasoned that matters which might and ought to have been made a ground of defence or attack in a former suit are deemed directly and substantially in issue. The appellants' claims concerning the provisional certificates of title and the loan security arose from the same subject matter litigated between the same parties and finally decided by competent courts. Permitting the new suit would allow litigation in instalments and defeat the finality that res judicata is designed to secure.

p. 3
02

The purpose and scope of the doctrine of res judicata

Holding

The doctrine serves the public interest in finality of litigation and protects parties and the courts from multiplicity of suits.

Reasoning

Relying on its own prior decision in the IEBC v Maina Kiai case, the Court restated that res judicata brings finality to litigation, affords parties closure, and protects against wastage of time and resources in endless rounds of litigation by intrepid pleaders seeking favourable outcomes through multiple suits and fora. Its foundations rest in the public interest for swift, sure and certain justice.

p. 2

Legal principles established

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  • Res judicata is not confined to issues a court was actually asked to decide; it covers issues or facts that are clearly part of the subject matter of the litigation and could have been raised in earlier proceedings between the same parties, and a party cannot litigate in instalments.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 7, 4th explanation
  • Land Actsection 79
  • Land Actsection 90
  • Land Actsection 96

Cases cited (2)

  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Hudson Kelly A. Agalov v Telkom Kenya Limited
    [2016] eKLR
On appeal from
Environment and Land Court of Kenya at Malindi
E.L.C Case No. 233 of 2017
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alka Roshanlal Harbanslal Sharma & another v Theresa Constabir [2020] KECA 160 (KLR)", Case Analysis (2020). Civil Appeal No. 66 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/160/eng@2020-11-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.