Kombe v Omar & 2 others (2008) 3 KLR (EP) 391 [2007] KECA 512 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you must claim all costs in your first appeal; if you forget, res judicata bars you from raising them later.
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 the costs to be awarded to the appellant, which was left unresolved by the High Court, could be raised and determined in this appeal after it had been considered in Civil Appeal No 50 of 2006
- 2.Whether the question of costs was res judicata by virtue of section 7 and Explanation 4 thereof of the Civil Procedure Code, having regard to the prior judgment in Civil Appeal No 50 of 2006
Key legal issues
#Whether the claim for costs in favour of the appellant was res judicata following the judgment in Civil Appeal No 50 of 2006
The question of the costs to be awarded to the appellant ought to have been raised in the previous appeal, and the claim is now barred by res judicata under section 7 of the Civil Procedure Code read with Explanation 4.
Both appeals arose from the same judgment of the High Court in Election Petition No 1 of 2003, involved the same parties (albeit in different roles) and the same matters directly and substantially in issue, namely the decision on the election petition and the award of costs. Counsel for the appellant addressed the Court fully on costs in the earlier appeal and was relieved of the burden of costs, but made no claim to an award of costs. Under Explanation 4 to section 7, a matter which might and ought to have been raised is deemed to have been in issue. Reconsidering it now would amount to the Court sitting on appeal on its own decision.
Whether the stay and subsequent revival of this appeal, after judgment in Civil Appeal No 50 of 2006, was procedurally proper
The arrangement by which the earlier-filed appeal proceeded first and this appeal was stayed pending its determination was proper and consonant with rule 100 of the Court of Appeal Rules.
Rule 100 permits the Court, for sufficient reason, to order two or more appeals to be heard one immediately after the other, or to order any of them to be stayed until after determination of another. Civil Appeal No 50 of 2006 was the first to be filed and was therefore properly heard first; the parties proposed, and the Court accepted, that this appeal be stayed and mentioned on the date of delivery of judgment in the first appeal.
The Court's disapproval of the delay in finalizing an election matter
The Court deprecated the activities resulting in the delay in finalizing the matter, which in substance ended with the decision in Civil Appeal No 50 of 2006, noting that such delay is unfair to the country in an election matter.
The dispute before the Court concerned only the question of costs, the substantive issues having been concluded by the judgment in the first appeal. The continuation of proceedings after that decision caused further delay in an election petition, a category of litigation in which expedition is of public importance because of the effect on the country.
Legal principles established
#- A matter which might and ought to have been made a ground of defence or attack in a former suit between the same parties is deemed to have been directly and substantially in issue in that suit, and a party who failed to raise it cannot raise it in a subsequent appeal between the same parties arising from the same decision - including a claim to costs.
- Where a court has already determined the question of costs between the same parties in a prior appeal, it cannot revisit that question in a later appeal, as that would amount to sitting on appeal on its own decision.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant shall pay the 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
- Election Petition No 1 of 2003
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (cap 9 Sub-Leg), rule 100; the judgment does not expressly invoke a constitutional provision.
- Consolidated with
- Civil Appeal No 50 of 2006 (heard first and determined separately; this appeal was stayed pending its determination)
Relief refused
#An award of costs to the appellant in respect of the election petition in the High Court
The claim was barred by res judicata; it ought to have been raised when the appellant argued Civil Appeal No 50 of 2006, in which he was already relieved of costs but made no claim for an award in his favour
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.
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title
Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
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.
The question of the costs to be awarded to the appellant ought to have been raised at the time of the hearing of the previous appeal when his advocate had the opportunity to do so.
This appeal is dismissed. The appellant shall pay costs of this appeal to the first, second and third respondents. Judgment accordingly.
Issues in the judgment
#The headnote and text describe the res judicata provision inconsistently, referring to the 'Civil Procedure Act' in the headnote but quoting 'Section 7 of the Civil Procedure Code' and 'explanation 4 of section 7 of the Civil Procedure Code' in the judgment text; the statute cited in the Statutes list appears as 'Civil Procedure Rules (cap 21) section 7'.
The judgment text is heavily corrupted by OCR/printing defects, with truncated and garbled passages throughout, including the coram and citation details.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kombe v Omar & 2 others (2008) 3 KLR (EP) 391 [2007] KECA 512 (KLR)", Case Analysis (2007). Civil Appeal No 52 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/512/eng@2007-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.