JOACKIM MWANDALE OKESSA v THABITI FINANCE CO. LTD [2007] KECA 397 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can strike out a repeat lawsuit early as res judicata—you cannot relitigate issues already decided between the same parties.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application to strike out a suit under Order VI rule 13(1)(b) and (d) of the Civil Procedure Rules was a proper procedural vehicle for raising res judicata, or whether res judicata could only be raised at trial
- 2.Whether the appellant's suit in HCCC No. 700 of 1999 was res judicata by reason of the prior determination of HCCC No. 1375 of 1997 by Ole Keiwua, J.
Key legal issues
#Whether res judicata can be raised on an application to strike out rather than at trial
The Court held that the respondents were entitled to bring the striking-out application under Order VI rule 13(1)(b) and (d); res judicata was a proper ground to be raised in that application.
The application was brought under Order VI rule 13(1)(b) and (d) of the Civil Procedure Rules, which permits striking out pleadings that are frivolous or vexatious or otherwise an abuse of the process of the court. The Court construed the rule as permitting a suit to be struck out for the stated reasons and held that where a suit is res judicata it can be brought under that provision. The appellant's contention that res judicata could only be raised at trial was rejected.
Whether HCCC No. 700 of 1999 was res judicata in respect of HCCC No. 1375 of 1997
Yes. Both suits were based on fraud and collusion, related to L.R. NBI/Block 110/442 and motor vehicle KAA 738R, and the issues of sale and accounts were raised and determined in the earlier suit between the same parties.
Applying Section 7 of the Civil Procedure Act, the Court compared the claims and reliefs in both suits. The parties and subject matter were the same: the sale of the suit premises and motor vehicle, the allegation of fraud, and the taking of accounts. The earlier suit had been heard and finally decided by Ole Keiwua, J. The appellant had filed a notice of appeal against that judgment but nothing followed, so the earlier judgment stood as final and barred the subsequent suit.
Legal principles established
#- An objection of res judicata under Section 7 of the Civil Procedure Act may properly be raised by way of a chamber summons application to strike out a suit under Order VI rule 13(1)(b) and (d) of the Civil Procedure Rules; it need not await trial.
- A suit whose matter directly and substantially in issue was already directly and substantially in issue in a former suit between the same parties, litigating under the same title, heard and finally decided by a competent court, is barred as res judicata under Section 7 of the Civil Procedure Act.
Court orders
#- 1.The appeal be and is hereby dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Milimani Commercial Courts, Nairobi
- H.C.C. Suit No. 700 of 1999
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction (no specific provision stated in the judgment)
Relief refused
#The appellant's appeal against the striking out of HCCC No. 700 of 1999
The subsequent suit was res judicata; the issues and reliefs had been determined in HCCC No. 1375 of 1997 between the same parties
Costs
The appeal was dismissed with costs to the respondents.
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.
It is our view that the respondents were entitled to bring the application for striking out.
We have carefully considered the claim and reliefs sought in both HCCC NO. 1375 of 1997 and HCCC NO. 700 of 1999 and it is our observation that both suits are based on fraud and collusion.
Having considered the history of the two suits and the law applicable we are satisfied that the subsequent suit (HCCC NO. 700 of 1999) was res judicata. We are therefore, in entire agreement with the ruling of Mwera J. For these reasons we find no merit in this appeal and we order that the same be and is hereby dismissed with costs.
It is to be observed that the appellant filed a notice of appeal in respect of the ruling by Ole Keiwua, J. but nothing further followed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOACKIM MWANDALE OKESSA v THABITI FINANCE CO. LTD [2007] KECA 397 (KLR)", Case Analysis (2007). Civil Appeal 38 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/397/eng@2007-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.