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ELCStruck Out· [2024] KEELC 933 (KLR)

Muguika & 2 others v Consolidated Bank of Kenya & another (Environment and Land Appeal E011 of 2023) [2024] KEELC 933 (KLR)

High Court of Kenya (appellate jurisdiction over Chief Magistrate's Court)
22 February 2024
1,384 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling determined a preliminary objection dated 2nd October 2023 raised by the 1st Respondent in an appeal from the Chief Magistrate's Court, contending that the Appellants' application was res judicata on account of the trial Court's ruling of 21st July 2023 in CMCC E431 of 2023 delivered by Chief Magistrate Wendy K. Micheni. The 1st Respondent argued that the Appellants deliberately failed to disclose the trial court's ruling and were attempting to re-litigate issues already raised in an application dated 6th December 2022. The Appellants opposed, urging two issues: whether the case had been decided with finality and whether the res judicata doctrine bars a right of appeal, relying on Siri Ram Kaura v MJE Morgan to argue that new facts discovered without prior knowledge warranted hearing the appeal. The court framed a single issue - whether the application was res judicata - noting typographical discrepancies in the application's date. Applying the five elements under Section 7 of the Civil Procedure Act and drawing on Nitin Properties Ltd v Singh Kalsi, Njangu v Wambugu, Republic v Attorney General Exparte Koroso, and Uhuru Highway Development Ltd v Central Bank of Kenya, the court found that the trial magistrate had heard and determined all issues presented, and that the Appellants had merely duplicated the prayers in an attempt to re-litigate. The court held that discovery of fresh evidence on matters already contested is no answer to res judicata. The preliminary objection was upheld and the Appellants' application struck out, with each party bearing its own costs.

Key legal issues

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01

Whether the Appellants' application is barred by res judicata

Holding

Yes. All issues in the application had been heard and determined in the trial Court's ruling of 21st July 2023; the Appellants merely duplicated the prayers and application to re-litigate.

Reasoning

The court applied Section 7 of the Civil Procedure Act's five elements of res judicata. Perusal of the ruling in CMCC E431 of 2023 confirmed the trial magistrate heard and determined all issues presented in the Appellants' application, which duplicated earlier prayers. Authorities established that fresh evidence on matters already contested does not defeat res judicata unless it entirely changes the case's aspect and could not have been discovered with reasonable diligence earlier.

p. 2
02

Whether new facts discovered by the Appellants exempt the application from the res judicata bar

Holding

No. Reliance on Siri Ram Kaura v MJE Morgan did not assist because the fresh-evidence exception requires facts that entirely change the case's aspect and were not discoverable with reasonable diligence earlier.

Reasoning

The Appellants argued they had come into new facts that entirely changed the aspect of the case. The court, relying on Siri Ram Kaura v M.J.E. Morgan, held that discovery of fresh evidence on matters already open for controversy is no answer to res judicata; the exception applies only where the fact entirely changes the aspect of the case and could not have been ascertained with reasonable diligence before the first application.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised
  • Section 7 of the Civil Procedure Act sets out five essential elements that must be satisfied for the bar of res judicata to be upheld
  • Discovery of fresh evidence on matters open for controversy in earlier proceedings is no answer to a defence of res judicata unless it entirely changes the aspect of the case and could not with reasonable diligence have been ascertained before
  • Parties cannot evade res judicata by conjuring up parties or issues to give a case a different complexion from that given in the former suit

Court orders

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  1. 1.The preliminary objection dated 2nd October 2023 is upheld as merited
  2. 2.The Appellants' application is struck out with an order that each party bear its own costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 1A
  • Civil Procedure Act, Cap 21Section 1B
  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure Rules, 2010Order 40
  • Civil Procedure Rules, 2010Order 51 Rule 1(4)(1)

Cases cited (5)

  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Siri Ram Kaura v MJE Morgan
    CA 71/1960 (1961) EA 462
  • Njangu vs Wambugu and another, Nairobi HCCC No.2340 of 1991
    (unreported)
  • Republic – Vs – Attorney General and Another Exparte James Alfred Koroso
  • Uhuru Highway Development Ltd – Vs – Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni
On appeal from
Chief Magistrate's Court (trial Court in CMCC E431 of 2023)
CMCC E431 of 2023
Jurisdiction invoked
Appellate jurisdiction over the trial Magistrate's Court (proceedings described as an appeal from CMCC E431 of 2023)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muguika & 2 others v Consolidated Bank of Kenya & another (Environment and Land Appeal E011 of 2023) [2024] KEELC 933 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/933/eng@2024-02-22

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