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Supreme CourtPartially AllowedPetition 17 of 2015

John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others

Supreme Court of Kenya
6 August 2021
Philomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
19,509 words in judgment
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AI-assisted case brief
·~78 min to read original · ~4 min brief

The bottom line

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A case dismissed as already decided can be reopened if the new claim raises different constitutional issues.

What this practically means

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The Supreme Court ruled that a constitutional petition cannot be automatically thrown out just because a similar issue was decided in a judicial review case. Judicial review only checks if a decision was procedurally fair, while a constitutional petition can examine whether laws violate fundamental rights. The Court said the doctrine of res judicata (no re-litigating the same issue) applies to constitutional cases only in the rarest situations, especially where injustice might occur.

Executive summary

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The Supreme Court of Kenya partially allowed an appeal against a Court of Appeal decision that had upheld a High Court ruling striking out a constitutional petition as res judicata. The appellants, clearing and forwarding companies, had challenged the imposition of FERI and COD certificates by the 4th respondent, OGEFREM, an agent of the DRC government, arguing that the underlying bilateral agreement was invalid and violated their constitutional rights. The High Court had struck out their petition, holding it was res judicata due to a prior judicial review application (JR No 130 of 2011) that had determined similar issues. The Court of Appeal affirmed this decision. The Supreme Court framed seven issues for determination, focusing on whether the High Court procedurally considered the plea of res judicata, whether it infringed on the right to fair hearing, whether the Court of Appeal was justified in applying res judicata, and the applicability of the doctrine to constitutional litigation. The Supreme Court held that the High Court had procedurally considered the plea and did not infringe on the right to fair hearing, as the appellants were given an opportunity to be heard. The Court reaffirmed that res judicata applies to constitutional litigation but only in the rarest and clearest of cases, and set parameters for exemption: potential for substantial injustice or demonstration of special circumstances. Crucially, the Court found that the Court of Appeal erred in holding that res judicata applied to the current case because the issues in the judicial review application and the constitutional petition were not the same. The High Court in a judicial review application exercises only a fraction of the jurisdiction it has to determine a constitutional petition, which includes the power to examine merits and grant broader remedies. The Court quashed the decisions of both lower courts and remitted the matter to the High Court for determination on its merits. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Did the High Court procedurally consider the plea of res judicata?
  2. 2.Did the finding by the High Court on res judicata infringe on the Petitioner’s right to fair hearing condemning them unheard?
  3. 3.Were the learned Judges of the Court of Appeal justified in holding that the doctrine of res judicata applied to the current case; was the Paluku case the same as the appellants’ herein?
  4. 4.Is this doctrine of res judicata applicable to constitutional litigation and interpretation, just as in other criminal and civil litigation?
  5. 5.If the doctrine of res judicata is applicable to constitutional matters with the rider that it should be invoked in constitutional litigation only in the rarest and clearest of cases, on whom lies the burden of proving such rarest and clearest of cases?
  6. 6.What constitutes such “rarest and clearest” of cases?
  7. 7.Who bears the costs of the suit.

Key legal issues

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01

Whether the High Court procedurally considered the plea of res judicata and whether it infringed on the appellants' right to fair hearing.

Holding

The High Court procedurally considered the plea of res judicata and did not infringe on the appellants' right to fair hearing. The appellants were given an opportunity to be heard and that opportunity was reasonable.

Reasoning

The court examined the record and found that the plea of res judicata was raised through grounds of opposition and replying affidavits, not as a preliminary objection. The appellants were aware of the plea, had the opportunity to respond, and were heard on multiple dates. The court applied the two justiciable elements of fair hearing: an opportunity of hearing must be given, and that opportunity must be reasonable. The appellants were not condemned unheard.

p. 17
02

Whether the doctrine of res judicata applies to constitutional litigation.

Holding

The doctrine of res judicata applies to constitutional litigation as a doctrine of general application, but it should be invoked only in the rarest and clearest of cases. A court may exempt its application where there is potential for substantial injustice or where special circumstances are demonstrated.

Reasoning

The court reaffirmed its position in the Muiri Coffee case that res judicata is based on the principle of finality and public policy. It rejected the argument that constitutional litigation cannot be subjected to res judicata, noting that constitutional tenets permeate all litigation. However, the court recognized that rights evolve and that the doctrine should not be applied at the cost of real injustice. It set parameters for exemption: potential for substantial injustice or demonstration of special circumstances.

p. 31
03

Whether the Court of Appeal was justified in holding that res judicata applied to the current case.

Holding

The Court of Appeal erred in holding that res judicata applied to the current case because the issues in the judicial review application and the constitutional petition were not the same; the High Court in a judicial review application exercises only a fraction of the jurisdiction it has to determine a constitutional petition.

Reasoning

The court compared the issues in JR No 130 of 2011 and the constitutional petition. The judicial review application sought orders of prohibition and mandamus based on procedural grounds, while the constitutional petition sought declarations of invalidity of the bilateral agreement and violations of fundamental rights under articles 2, 40, and 95 of the Constitution. The court held that the High Court in a judicial review application cannot determine issues of constitutional interpretation and violation of fundamental rights, which are within the broader jurisdiction of a constitutional petition. Therefore, the determination in the judicial review application was not a final determination of the issues in the constitutional petition.

p. 40

Legal principles established

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  • Res judicata applies to constitutional litigation but only in the rarest and clearest of cases.
  • A court may exempt res judicata where there is potential for substantial injustice or special circumstances.
  • A judicial review determination is not a final decision on constitutional issues because the two proceedings have different scopes and remedies.
  • The right to fair hearing requires only that a party be given a reasonable opportunity to be heard, not that they win.
  • The High Court in a constitutional petition has broader jurisdiction than in judicial review, including power to substitute decisions.

Court orders

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  1. 1.The judgment and order of the Court of Appeal dated July 31, 2015 be and is hereby quashed and set aside.
  2. 2.The ruling and order of the High Court dated July 31, 2014 be and is hereby quashed and set aside.
  3. 3.For the avoidance of doubt, the ruling of the High Court is null and void.
  4. 4.The matter is remitted to the High Court for determination on its merits.
  5. 5.Each party is to bear its own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Civil Appeal No 42 of 2014
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Costs to the 4th respondent for loss of earnings

The court found that there should be no order as to costs because the High Court erred and the Court of Appeal's findings were partly correct and partly erroneous, and the matter was remitted for determination on its merits.

p. 40

Costs

Each party is to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition.
p. 40 Jurisdiction of High Court in judicial review vs constitutional petitions
We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy.
p. 31 Basis of res judicata
The petition of appeal dated September 9, 2015 and filed on September 10, 2015 date is allowed in the following specific terms: (i) The judgment and order of the Court of Appeal dated July 31, 2015 be and is hereby quashed and set aside. (ii) The ruling and order of the High Court dated July 31, 2014 be and is hereby quashed and set aside. (iii) For the avoidance of doubt, the ruling of the High Court is null and void. (iv) The matter is remitted to the High Court for determination on its merits. (v) Each party is to bear its own costs.
p. 41 Final orders of the Supreme Court
It is evident that the plea of res judicata was raised and not as a preliminary objection as argued by the appellants.
p. 17 Procedure for raising res judicata
However, though the doctrine of res judicata lends itself to promote the orderly administration of justice, it should not be at the cost of real injustice.
p. 32 Limitation on application of res judicata

Key timeline

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2011
Appellants filed Judicial Review No. 130 of 2011 challenging FERI/COD certificate requirements.
2014-07-31
High Court struck out constitutional petition as res judicata based on the earlier judicial review case.
2015-07-31
Court of Appeal upheld the High Court's decision on res judicata.
2021
Supreme Court quashed both lower court decisions and remitted the case to the High Court for hearing on merits.

Practical implications

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For lawyers

Plead res judicata carefully in constitutional cases

When raising res judicata in a constitutional petition, you must show it is the 'rarest and clearest' case. The Supreme Court warns that a prior judicial review ruling does not automatically bar a constitutional petition on the same facts. Prepare to distinguish the scope of relief sought and demonstrate no substantial injustice would result from applying the bar.

For businesses

Challenge regulatory fees through constitutional petitions

If your business faces mandatory charges like FERI/COD certificates, a judicial review challenge may not be enough. This ruling confirms you can bring a constitutional petition arguing the fees violate fundamental rights (e.g., property rights under Article 40) even after a judicial review loss. Ensure your legal team frames the case around constitutional violations, not just procedural flaws.

For individuals

Your constitutional rights can be litigated even after other cases

If you lost a previous case on the same facts but that case did not fully address your constitutional rights (e.g., fair hearing, property rights), you may still file a constitutional petition. The Supreme Court says courts should not automatically block such petitions unless it would be clearly unjust to reopen the matter. Get legal advice on whether your prior case qualifies.

Frequently asked questions

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What is res judicata in Kenya and when does it apply to constitutional cases?+

Res judicata means a matter already decided by a court cannot be re-litigated. In Kenya, the Supreme Court says it applies to constitutional cases only in the rarest and clearest situations. Courts can exempt it if applying it would cause substantial injustice or if special circumstances exist.

Can I file a constitutional petition in Kenya after losing a judicial review case?+

Yes, if the new petition raises constitutional issues like violations of fundamental rights. The Supreme Court ruled that judicial review only checks procedural fairness, while a constitutional petition can examine broader rights. A prior judicial review loss does not automatically bar a constitutional petition.

What is the difference between judicial review and constitutional petition in Kenya?+

Judicial review focuses on whether a decision was made fairly and lawfully. A constitutional petition can challenge laws or actions for violating fundamental rights under the Constitution. The High Court has wider powers in a constitutional petition, including ordering remedies like declarations of invalidity.

How does the right to fair hearing apply when a case is dismissed as res judicata in Kenya?+

The right to fair hearing is satisfied if you are given a reasonable opportunity to respond to the res judicata argument. In this case, the Supreme Court found the appellants were heard on multiple dates, so their fair hearing rights were not violated even though the case was initially dismissed.

Later judgments citing this (25)

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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, "John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others", Case Analysis (2021). Petition 17 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/39/eng@2021-08-06

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