HARRISON GARAMA KOMBE v ALI OMAR & 2 OTHERS [2007] KECA 488 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you must claim all costs in your first appeal — matters already decided cannot be raised again.
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 question of costs of the election petition in the superior court, left unaddressed as to the appellant, could be raised in this appeal given that it had been considered and decided in Civil Appeal No. 50 of 2006
- 2.Whether the doctrine of res judicata barred the appellant's claim that he should have been awarded costs as costs follow the events
Key legal issues
#Whether the appellant's claim for costs of the election petition was barred by res judicata
Yes. The question of who was to pay costs of the petition was considered at length and decided in Civil Appeal No. 50 of 2006, an appeal from the same judgment between the same parties, in which the appellant was relieved of costs. His failure to seek an award of costs in his favour then attracts Explanation 4 to section 7 of the Civil Procedure Code; the matter is res judicata and cannot be re-opened, as to do so would be sitting on appeal on the court's own decision.
The court found that the parties were the same (though in different roles), the subject matter was the same judgment in Election Petition No. 1 of 2003, and the issues were the same: the decision on the petition and the award of costs. Counsel had fully addressed the court on costs in Civil Appeal No. 50 of 2006 and obtained relief for his client, but did not then claim costs in his client's favour. Under section 7 and Explanation 4 of the Civil Procedure Code, that claim was deemed to have been in issue and finally decided. Revisiting it would amount to the court appealing its own decision.
Whether the hearing and disposal of Civil Appeal No. 50 of 2006 first, and the sequencing of this appeal, was proper
Yes. The court, invoking rule 100 of the Court of Appeal Rules, regarded it as proper that Civil Appeal No. 50 of 2006, the first filed, be heard first, and that this appeal be stayed and mentioned after delivery of that judgment.
The two appeals arose from the same judgment of the High Court and involved more or less the same issues. With the consent of all parties, and consistent with rule 100 permitting the court to order appeals heard one immediately after the other or stayed pending determination of another, the court allowed Civil Appeal No. 50 of 2006 to be heard first and this appeal to be mentioned after its judgment. This was a case-management decision within the court's discretion under the Rules.
Legal principles established
#- An issue, including one on costs, that was directly and substantially in issue and decided in an earlier appeal between the same parties arising from the same judgment is res judicata and cannot be re-litigated in a subsequent appeal; a court cannot sit on appeal on its own decision.
- Under Explanation 4 to section 7 of the Civil Procedure Code, any matter which might and ought to have been made a ground of attack or defence in a former suit between the same parties is deemed to have been directly and substantially in issue in that suit.
Court orders
#- 1.Appeal dismissed
- 2.The appellant shall pay costs of this appeal to the first, second and third respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Election Petition No. 1 of 2003
- Jurisdiction invoked
- Appeal from a judgment and order of the High Court in an election petition under the National Assembly and Presidential Elections Act (as intimated by the appeal's provenance); the judgment does not expressly cite the appellate jurisdiction provision.
Relief refused
#Award of costs of the petition in the superior court to the appellant
The question of costs was res judicata, having been considered and decided in Civil Appeal No. 50 of 2006, in which the appellant was relieved of any costs; the claim that costs should have been awarded to him ought to have been raised then
Costs
The appellant shall pay costs of this appeal to the first, second and third 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.
Thus, in our considered view, the question of costs is clearly covered under the doctrine of res judicata and we agree with Mr. Wameyo on that point. It is no longer available for us to consider as to do so would be sitting on appeal on our own decision.
He had the opportunity at that time in accordance with explanation 4 of section 7 of the Civil Procedure Code to raise the question of costs to be awarded to his client. He did not find it fit to do so for reasons known to him.
This appeal is dismissed. The appellant shall pay costs of this appeal to the first, second and third respondents. Judgment accordingly.
We deprecate the activities resulting into the delay in finalizing this matter which for all intents and purposes ended with our decision in Civil Appeal No. 50 of 2006. The consequence of such a delay as happened here are clearly unfair to the country, this being an election matter.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HARRISON GARAMA KOMBE v ALI OMAR & 2 OTHERS [2007] KECA 488 (KLR)", Case Analysis (2007). Civil Appeal 52 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/488/eng@2007-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.