Mohamed Sheikh Omar Dahman v Esha Ahmed Bin Dahman & 3 others [2006] KECA 104 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot re-argue issues already decided in a preliminary objection unless you appealed or sought review at the time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the orders made by Maraga J in his Ruling dated 28 November 2003 were wrong and ought to be set aside as the appellant asked.
- 2.Whether the issues raised before Maraga J - that the claim in the superior court was time-barred and that parts of the affidavit filed in support of the originating summons ought to be struck out - were res judicata, having been raised and determined in earlier preliminary objections before Commissioners of Assize Shah and Tutui.
- 3.Whether the substantive claims in the originating summons should be disposed of by way of a full hearing rather than at the preliminary stage.
Key legal issues
#Whether the issues of limitation and the striking out of portions of the supporting affidavit were res judicata.
They were. The same issues had been raised in preliminary objections before Commissioners of Assize Shah and Tutui; Shah rejected the objection 'all in all' and Tutui sustained the repeated objection while expressly referring to Shah's earlier order. No appeal or review was brought against either decision, and the parties agreed before Maraga J that the issues had been raised twice before.
The appellant's earlier notice of preliminary objection listed the time-bar ground first; although Commissioner Shah did not separately address it, he concluded that the objection failed as a whole, so that ground failed with it, and no appeal or review followed. Commissioner Tutui later sustained a repeated objection, expressly referring to Shah's order, and directed the parties to proceed with directions and set the suit down for hearing. The parties conceded before Maraga J that the issues had been raised twice, and the Court found no fault with his res judicata conclusion.
Whether a ground of a rejected preliminary objection fails even where the court did not specifically address it.
Yes. Where a preliminary objection is rejected as a whole, every ground in it fails, including grounds not individually dealt with; and the failure to appeal or seek review makes that outcome final between the parties.
The Court confronted the fact that Commissioner Shah never specifically determined the limitation ground. It reasoned that the ground was the first ground of the notice of preliminary objection and that, since the Commissioner concluded 'all in all' that the objection failed, the unaddressed ground failed with it. Because no appeal or application for review was lodged against that disposition, it became final and could not be reopened through a later objection.
Whether the Court should interfere with Maraga J's ruling and what should become of the substantive claims.
The appeal was dismissed and the ruling stands; the substantive claims in the originating summons should go to a full hearing irrespective of their merit.
Having heard the appellant's counsel, the Court remained 'wholly unconvinced' that the orders under challenge were wrong. Aligning itself with the Judge below, it held that claims in an originating summons, whatever their merit, should be disposed of by way of a hearing rather than be extinguished at the preliminary stage. It therefore dismissed the appeal with costs, leaving the parties to proceed to the hearing of the substantive suit.
Legal principles established
#- Issues raised and determined in a preliminary objection are res judicata and cannot be re-litigated later in the same suit where no appeal or review was pursued against the earlier decisions.
- A ground contained in a preliminary objection that is rejected in its entirety fails with the objection, even where the court did not specifically deal with that ground.
- A party who neither appeals from nor seeks review of an interlocutory decision is bound by it in the subsequent conduct of the same litigation.
- Substantive claims in an originating summons should be resolved at a hearing, not disposed of through successive preliminary objections.
Court orders
#- 1.The appeal was dismissed with costs ('We accordingly order that this appeal be and is hereby dismissed with costs'), leaving the ruling and orders of Maraga J of 28 November 2003 intact.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 367 of 1999
- Jurisdiction invoked
- Not stated in the judgment. The matter proceeded as a first appeal from the High Court to the Court of Appeal; no constitutional or statutory provision conferring jurisdiction is cited in the text.
Relief refused
#Setting aside the ruling and orders of Maraga J dated 28 November 2003, as sought by the appellant.
The Court remained wholly unconvinced that the orders were wrong; the matters they disposed of were res judicata, having been raised and determined in two earlier preliminary objections (before Commissioner of Assize Shah and Commissioner of Assize Tutui) from which no appeal or review was sought.
Costs
The appeal was dismissed with costs - the order as stated is 'this appeal be and is hereby dismissed with costs', so the appellant was to bear the costs of the appeal.
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.
We accordingly order that this appeal be and is hereby dismissed with costs. Those shall be our orders in the appeal.
In these circumstances, we can find no fault with Maraga, J’s conclusion that those matters were res judicata.
True the Commissioner did not specifically deal with the issue of the claim being time barred, but that issue was the first ground of objection
Preliminary Objections must come to an end at one stage to give way to the substantive issues to be decided upon.
There was no appeal from that decision; nor was there ever an application for review of decision.
Like the Judges of the superior court, we also think the substantive claims raised in the originating summons, irrespective of their merit, should be disposed of by way of a hearing.
Issues in the judgment
#The names of the appellant and the deceased are spelled inconsistently within the judgment: the caption uses 'Sheikh' while the party listing and body use 'Sheik' ('Mohamed Sheik Omar Dahman' and 'Sheik Omar Bin Dahman').
Key timeline
#Practical implications
#Frequently asked questions
#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.
Cite this brief
#Cite this brief
Caselaw, "Mohamed Sheikh Omar Dahman v Esha Ahmed Bin Dahman & 3 others [2006] KECA 104 (KLR)", Case Analysis (2006). Civil Appeal 162 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/104/eng@2006-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.