Waiguru & another v Karua & 2 others
The bottom line
#Supreme Court stops re-litigation of already decided election dispute, closes appeal with no costs.
What this practically means
#The applicants wanted to withdraw their appeal because the main issue had already been decided by the Supreme Court in a different case. The court agreed, ruling that the issue was already settled and could not be re-opened. It also said that since the earlier case was declared invalid, no party could claim victory, so each side must pay its own legal costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the issues herein were fully determined in petition No. 3 of 2019? In other words, whether the issues herein are res judicata?
- 2.If the answer to (i) is in the affirmative, who should bear the costs herein?
Key legal issues
#Whether the issues in Petition No 5 of 2018 were res judicata by virtue of the judgment in Petition No 3 of 2019.
The court held that the issues in Petition No 5 of 2018 were fully determined in Petition No 3 of 2019, and therefore the petition was res judicata.
The court compared the issues in both petitions. It noted that the applicants' main argument was that the High Court lacked jurisdiction to hear the election petition after six months, an issue decided in Petition No 3 of 2019. The 1st respondent conceded similarity of issues but objected to the procedure. The court found no outstanding issue requiring full hearing and declared the petition dispensed with to avoid repetitive litigation.
Who should bear the costs of the proceedings?
Each party should bear its own costs.
The court applied the principle from Jasbir Singh Rai that costs follow the event, but noted that in Petition No 3 of 2019, the proceedings were declared a nullity, so no party could claim success. Since the parties and issues were the same, the same reasoning applied mutatis mutandis.
Legal principles established
#- Where issues in a petition have been fully determined in a prior Supreme Court judgment, the petition is res judicata and may be declared dispensed with.
- Where proceedings are declared a nullity, no party can claim success, and each party should bear their own costs.
- The Supreme Court has ancillary powers under section 21 of the Supreme Court Act to issue orders necessary to dispose of a matter, including declaring a petition dispensed with.
- A party cannot be compelled to pursue an appeal if the issues have been resolved in a prior judgment.
- Reliance on a repealed procedural rule is not fatal if the Constitution allows substantial justice to be done (Article 159(2)(d)).
Court orders
#- 1.The applicants’ notice of motion dated December 4, 2020 be and is hereby allowed.
- 2.A declaration be and is hereby issued that the issues raised in Petition No 5 of 2018: Hon Anne Mumbi Waiguru & another v Hon Martha Wangari Karua & 2 others were fully determined by this honourable court in its judgment delivered on August 6, 2019 in Petition No 3 of 2019: Hon Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others.
- 3.The petition of appeal dated March 28, 2018 and filed on March 29, 2018 be and is hereby ordered dispensed with.
- 4.Each party shall bear its own costs in this matter and the proceedings at the Court of Appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Nyeri Election Appeal No 1 of 2017
- Jurisdiction invoked
- section 24 of the Supreme Court Act and rule 23 of the Supreme Court Rules, 2012
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having found that the issues in this Petition No. 5 of 2018 were determined in Petition No 3 of 2019, what is the consequence of this declaration? Even though the applicants did not seek further orders, we deem it fit, premised on our mandate under section 21 of the Supreme Court Act which empowers this court to issue ancillary orders, to order that this petition of appeal be deemed to have been dispensed with.
Each party shall bear its own costs in this matter and the proceedings at the Court of Appeal.
Yet, while the general rule is that the successful party ought to be paid costs by the unsuccessful one, where proceedings are declared to be a nullity, no party can claim success – see Paul Chen-Young v Ajax Investments Ltd & others, Jamaica Supreme Court Civil Appeal No 39 of 2006, Paras 205 and 206. Each party should therefore bear their costs in the proceedings before all the courts.
Key timeline
#Practical implications
#Res judicata and costs in election petitions
The Supreme Court confirmed that once an issue is determined in a prior judgment, it cannot be re-litigated. Lawyers should check if similar issues have been settled before filing appeals. Also, when proceedings are declared a nullity, no costs are awarded. This case provides a basis for seeking ancillary orders to dispose of cases where issues are already resolved.
Avoiding repetitive litigation costs
Businesses involved in litigation should note that courts will not allow the same issue to be litigated twice. If a key issue has already been decided in another case involving the same parties, further appeals on that issue will be dismissed. This saves time and legal costs. Also, if proceedings are invalid, each party bears own costs, so manage litigation strategy accordingly.
When a case is finally decided
If you are involved in a case and the main issue has already been decided by the Supreme Court in another case involving the same parties, you cannot bring it again. This principle, called res judicata, prevents endless litigation. Also, if a case is declared invalid, you may not get costs even if you win. Always check if your issue has been settled before.
Frequently asked questions
#What is res judicata in Kenya?+
Res judicata means that a matter that has been finally decided by a court cannot be re-litigated between the same parties. In this case, the Supreme Court applied it to stop a repeat election petition appeal.
Can I withdraw an appeal in Kenya if the issue is already decided?+
Yes, you can apply to have the appeal declared res judicata if the issue has been determined in a prior judgment. The court may dispense with the appeal without a full hearing, as happened in this case.
Who pays costs when a case is declared a nullity in Kenya?+
When proceedings are declared a nullity, no party can claim success. Therefore, each party bears its own costs. This principle was applied in this Supreme Court ruling.
What happens if my case is already decided by the Supreme Court of Kenya?+
If the Supreme Court has already decided the same issue in another case involving the same parties, your case may be declared res judicata and dispensed with. You cannot re-litigate the issue.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Tarzan Limited v Koima Developers Limited & another (Civil Appeal (Application) E011 of 2022) [2023] KECA 1115 (KLR)[2023] KECA 1115 (KLR)22 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Waiguru & another v Karua & 2 others", Case Analysis (2021). Petition 5 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/38/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.