John B. Masika & 3 others v Mulembe Farm Ltd & 2 others [2018] KEELC 4153 (KLR)
The bottom line
#The High Court in Kitale blocked a family's attempt to revive a company membership claim already decided in 2003, confirming Kenyan courts will not relitigate closed matters.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is res judicata because the deceased's claim to membership of Mulembe Farm Ltd was dismissed in Kitale SPMCC No. 60 of 2003 by a court of competent jurisdiction, that decision was never appealed, and the point now raised (how the shares were disposed of) ought to have been raised in that suit.
The deceased had previously litigated the very claim - to be declared a member of Mulembe Farm Ltd - and it was dismissed by the subordinate court in 2004. There is no evidence of a successful appeal or review. Under Explanation 4 to Section 7 of the Civil Procedure Act, the question of how the shares were disposed of, now raised for the first time, is deemed to have been in issue. Adding new parties does not defeat res judicata. The subordinate court had jurisdiction over land matters.
Whether the application amounts to review
The application, not being brought under Order 45 and relying on no ground of review or error apparent on the face of the record, cannot be treated as an application for review.
The court noted the application does not argue that it is for review of the judgment in this suit, nor is any error on the face of the record alleged. Since it was not brought under Order 45 of the Civil Procedure Rules, it cannot be deemed an application for review; the absence of the normal grounds of review supports this.
Section 103 of the Companies Act
The application was not brought under Section 103(1) of the Companies Act (rectification of the register of members) and the prayer for 'recognition' is unspecific; litigants must be specific regarding the reliefs they seek.
The court examined Section 103 of the Companies Act and agreed with the respondents that the application was not brought under it. There was no elaboration on what 'recognition' of the deceased as a member means, no mention of the company members' register in the prayers, and hence no proper statutory basis for the relief sought.
Legal principles established
#- Any matter which might and ought to have been made a ground of defence or attack in a former suit is deemed to have been directly and substantially in issue in that suit (Explanation 4 to Section 7, Civil Procedure Act)
- Parties cannot evade the doctrine of res judicata by adding other parties or causes of action in a subsequent suit
- The doctrine of res judicata has two dimensions: cause of action res judicata and issue res judicata; the bar extends to points which might have been raised but were not
Court orders
#- 1.The application dated 29/6/2016 is dismissed
- 2.Costs awarded to the respondents
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule (1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John B. Masika & 3 others v Mulembe Farm Ltd & 2 others [2018] KEELC 4153 (KLR)", Case Analysis (2018). Application dated 29/6/2016 (Kitale High Court suit, judgment delivered 21 years prior). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4153/eng@2018-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.