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Court of AppealDismissedCivil Appeal No. 32 of 1997

George Gikubu Mbuthia & 3 others v Small Enterprises Finance Ltd & another [2015] KECA 366 (KLR)

Court of Appeal
2 October 2015
1,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot keep filing fresh applications on the same issue—res judicata applies to applications, not just full lawsuits.

What this practically means

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Executive summary

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This is a Court of Appeal judgment dismissing an appeal by George Gikubu Mbuthia against a ruling of Mbogholi J delivered on 16th January 1997 in H.C.C.C. No. 3088 of 1994. The High Court had dismissed the appellant's application dated 10th December 1996, which sought an interlocutory injunction restraining the sale of LR No. 36/11/1 Nairobi, striking out of the respondents' suit, and setting aside earlier orders. The High Court upheld a preliminary objection that the application was res judicata, the appellant having previously made similar applications dated 24th July 1996 and 6th November 1996 (dismissed by Ringera J and Ole Keiwa J respectively) and a Rule 5(2)(b) application before the Court of Appeal (Civil Application No. Nai 373 of 1996), which was also dismissed. Before the Court of Appeal, the appellant argued in person that the charge document underlying the threatened sale was defective for non-compliance with Section 35 of the Advocates Act and Sections 49(4) and 56(1) of the Transfer of Property Act. The court confined itself to the narrow issue of res judicata, applying Section 7 of the Civil Procedure Act and Explanation (4) thereto, and affirmed the settled position that res judicata applies to applications made in suits, citing Uhuru Highway Development Limited v Central Bank of Kenya. It held that the challenge to the charge documents could have been raised in the previous applications and should instead be resolved at the hearing of the suit. The court deplored the appellant's pursuit of interlocutory applications without disclosing the status of the parent suit. The appeal was dismissed with no order as to costs, the respondents not having attended.

Questions the Court framed

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

  1. 1.Whether the appellant's application dated 10th December 1996, seeking an interlocutory injunction and other relief, was res judicata in light of previous applications between the same parties.
  2. 2.Whether a defective charge document (alleged non-compliance with Section 35 of the Advocates Act and Sections 49(4) and 56(1) of the Transfer of Property Act) could found the exercise of statutory power of sale.

Key legal issues

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01

Whether the application dated 10th December 1996 was barred by res judicata

Holding

Yes. The complaints raised, including the challenge to the charge documents, could and ought to have been raised in the previous applications before Ringera J, Ole Keiwa J and the Court of Appeal, and no changed circumstances or new cause of action were alleged.

Reasoning

The appellant had previously filed applications dated 24th July 1996 and 6th November 1996, and a Rule 5(2)(b) application (Civil Application No. Nai 373 of 1996), all seeking to restrain the sale of the same property. The documents complained of were in his possession all along. Explanation (4) to Section 7 deems matters which might and ought to have been raised to have been in issue. The Court of Appeal had already declined to grant an injunction on the same grounds.

p. 3
02

Whether the illegality of the charge document could be pursued through successive interlocutory applications

Holding

No. Such a challenge belongs to the hearing of the suit, not to repeated interlocutory applications.

Reasoning

The court declined to analyse the merits of the charge document's legality, as the status of the parent suit before the High Court was unclear. The complaint regarding the charge documents, grounded on Section 35 of the Advocates Act and Sections 49(4) and 56(1) of the Transfer of Property Act, should be resolved at the hearing of the suit rather than through repeated interlocutory applications.

p. 3

Legal principles established

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  • The principle of res judicata under Section 7 of the Civil Procedure Act applies not only to suits but also to applications made in suits.
  • Any matter which might and ought to have been raised in a former suit or application is deemed to have been directly and substantially in issue, per Explanation (4) to Section 7.
  • The object of res judicata is to prevent parallel litigation over the same matter and to bring an end to litigation; a litigant should not be vexed twice over the same matter.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs (respondents and counsel did not attend the hearing)

The bench

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

Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
majority
majority
On appeal from
High Court of Kenya
H.C.C.C. No. 3088 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory ruling of the High Court (Civil Appeal No. 32 of 1997)

Relief refused

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Interlocutory injunction restraining sale of LR No. 36/11/1 Nairobi

Application was res judicata; the complaints could have been raised in previous applications

p. 3

Striking out of the respondents' suit as scandalous, vexatious, frivolous or an abuse of process

Not granted by the trial court and not established on appeal

Setting aside proceedings and orders made on 25th November 1996

Not granted by the trial court; appeal dismissed

Costs

No order as to costs, since neither the respondents nor their counsel attended the hearing

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.

It is also now settled that the principle of res judicata applies to applications made in suits.
p. 2res judicata - applications in suits
Any matter which might and ought to have been made 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
p. 2Section 7 Civil Procedure Act - Explanation (4)
The object of the principle is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter.
p. 2policy object of res judicata
The challenge made against the charge documents could have been made a ground of attack in the previous applications.
p. 3constructive res judicata
We order this appeal be and is hereby dismissed. As neither the respondents nor their counsel attended the Court when this appeal came up for hearing, we make no order as to costs.
p. 3final orders and costs

Issues in the judgment

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minor

The judgment states the appellant 'also sought the striking out of the respondents’ suit... and for setting aside proceedings and orders made on 25th November, 1996' but then notes the latter relief relates to proceedings of 15th October 1996, an internal inconsistency in dates.

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, "George Gikubu Mbuthia & 3 others v Small Enterprises Finance Ltd & another [2015] KECA 366 (KLR)", Case Analysis (2015). Civil Appeal No. 32 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/366/eng@2015-10-02

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