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Court of AppealPartially AllowedCivil Appeal 261 of 2002

Daniel Kirui & Anothwer v Monicah W. Macharia & Another [2007] KECA 382 (KLR)

Court of Appeal of Kenya
30 March 2007
SBS.E.O. BosireEOE.O. O'KubasuWDW.S. Deverell
1,126 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a land lawsuit because it repeated a case already decided, confirming you cannot relitigate the same dispute in a different capacity.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nakuru against a ruling of Visram J. dated 30 July 2002 in Nakuru HCCC No. 17 of 2001, in which the judge had declined to strike out a declaratory suit on the ground of res judicata. The respondent, Monicah W. Macharia, as legal representative of her deceased husband Peter Macharia, had earlier prosecuted a suit over the same parcel, L.R. No. Nakuru Municipality/Block 6/142, which had been allotted to him by the Commissioner of Lands in 1992 and the allotment cancelled in 1993; that suit was dismissed with costs. She then brought a fresh suit in her individual capacity against Daniel Kirui, Kipsinende Farm Co. Ltd and the Commissioner of Lands, claiming the title was held in trust for her. The defendants pleaded res judicata and applied to strike out the suit under Order VI rule 13(1)(b) and (d) of the Civil Procedure Rules. Visram J. held the suit was not res judicata because the respondent was party to the earlier case in a different capacity. The Court of Appeal, in a single judgment of the court delivered by S.E.O. Bosire, E.O. O'Kubasu and W.S. Deverell, allowed the appeal. It held that the test for res judicata is the substantial issue in the two suits, not the individual prayers or the capacity of the party, and that under section 7(4) of the Civil Procedure Act matters that should have been raised earlier are deemed to have been in issue. The appeal was allowed, the ruling of Visram J. set aside, the respondent's suit struck out with costs, and the costs of the appeal awarded to the appellants against the 1st respondent, the 2nd respondent having taken no part in the appeal.

Questions the Court framed

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

  1. 1.Whether the later suit by Monicah W. Macharia was barred by res judicata under section 7 of the Civil Procedure Act

Key legal issues

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01

Whether a suit by a party in a different capacity (individual rather than legal representative) escapes the bar of res judicata where the subject-matter and substantial issue are the same

Holding

It does not; the test is the substantial issue in each suit and sameness of the matter, not the capacity or the specific prayers. The suit was res judicata and should have been struck out.

Reasoning

The court accepted as common ground that both suits concerned the same property, essentially the same defendants, and title to that property. The respondent's claim derived from the same allotment/compensation source as her husband's. Section 7(4) deems matters that should have been raised in the earlier suit to have been in issue; failure to canvass the trust issue was attributable to the claimant. Visram J's contrary ruling erred in focusing on the capacity in which the respondent was party.

p. 2

Legal principles established

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  • In assessing res judicata, the court examines the substantial issue in the two suits, not the individual prayers in the respective plaints
  • Matters which should have been made part of the claim in the earlier suit are deemed to have been directly and substantially in issue in that suit, and their omission cannot be blamed on the defendant

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of Visram J. dated 30th July 2002 set aside
  3. 3.Substituted order striking out Nakuru High Court Civil Case No. 17 of 2000 with costs
  4. 4.Costs of the appeal awarded to the appellants against the 1st respondent

The bench

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

SB
majority
EO
majority
WD
majority
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 17 of 2001
Jurisdiction invoked
First appellate jurisdiction over the High Court (ruling and orders of Visram J. dated 30th July 2002); no specific constitutional provision invoked

Relief refused

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Respondent's claim to proceed with the declaratory/trust suit in Nakuru HCCC No. 17 of 2001

The suit was barred by res judicata as the substantial issue had been heard and finally decided in the earlier suit by her deceased husband

p. 2

Costs

Nakuru High Court Civil Case No. 17 of 2000 struck out with costs; costs of the appeal awarded to the appellants against the 1st respondent (the 2nd respondent having taken no part in the appeal)

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.

the important consideration is not the individual prayers in the respective plaints of the two suits, but the substantial issue in each suit
p. 2Res judicata - test to be applied
under section 7(4) of the Civil Procedure Act res judicata affects even those matters which should have but were not made part of the claim in the earlier suit are deemed to have been substantially and directly in issue in such suit
p. 2Section 7(4) constructive res judicata
we allow this appeal, set aside the order of Visram J. dated 30th July 2002, and substitute therefor, an order striking out Nakuru High Court Civil Case No.17 of 2000 with costs
p. 2Final orders and disposition

Issues in the judgment

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minor

Inconsistent numbering of the respondent's suit: the memorandum of appeal and the ruling reference H.C.C.C. No. 17 of 2001, while the judgment body and the final orders refer to 'Civil Suit No.17 of 2000' / 'Nakuru High Court Civil Case No.17 of 2000'

minor

The respondent's first name is spelled inconsistently ('Monicah W. Macharia' in the title vs 'Monica Wamuhu Macharia' in the judgment body)

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, "Daniel Kirui & Anothwer v Monicah W. Macharia & Another [2007] KECA 382 (KLR)", Case Analysis (2007). Civil Appeal 261 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/382/eng@2007-03-30

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