Kundan Singh Construction Limited & another v Tanzania National Roads Agency [2019] KECA 45 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a suit cannot block another suit as res judicata unless the first case was actually heard and decided on its merits.
What this practically means
#Executive summary
#Key legal issues
#Whether the Mombasa suit was res judicata in relation to the Milimani suit
It was not: the subject matters differed and the Milimani suit was never heard and determined on its merits.
The court examined the four elements of res judicata. Although the parties were substantially the same, the subject matters differed: the Milimani suit was a construction dispute destined for arbitration, seeking only injunctive relief under the Arbitration Act, while the Mombasa suit concerned claims under the performance guarantees issued by the bank, which was not party to the arbitration agreement. Further, the Milimani suit was marked as closed without any determination on the merits, so nothing within it was finally adjudicated.
Whether a suit not heard on its merits can render another suit res judicata
No. Res judicata requires a final judgment on the merits by a court of competent jurisdiction.
Relying on section 7 of the Civil Procedure Act and the Uhuru Highway elements, the court held that the Milimani suit, having been marked as spent and closed after publication of the arbitral award, never had its issues ventilated or evidence tested under cross-examination. A matter once judicially decided is finally decided, but the Milimani suit involved no such judicial decision on the merits, so it could not bar the Mombasa suit.
Whether the Court should interfere with the trial judge's discretionary refusal to strike out the Mombasa suit
No. The judge properly exercised her discretion and the Court found no basis to interfere.
Applying the Mbogo vs Shah standard, the Court found the learned judge had correctly compared the pleadings, concluded the issues were not the same, and that the Milimani suit was not heard on its merits. The circumstances had changed between Azangalala, J.'s stay order and Kasango, J.'s ruling, and her exercise of discretion was neither erroneous nor productive of misjustice.
Legal principles established
#- The elements of res judicata are conjunctive and must all be present, including that the former suit was heard and finally decided on its merits; a suit closed without determination on the merits cannot found a plea of res judicata.
- An appellate court will not interfere with the exercise of a trial court's discretion unless it misdirected itself or was clearly wrong resulting in misjustice.
- A suit filed solely to obtain interim injunctive relief under sections 6 and 7 of the Arbitration Act pending arbitration ends once such relief is granted; it does not determine the underlying dispute on the merits and cannot ground res judicata.
- A dispute against a guarantor under performance guarantees cannot be determined in arbitration under the main construction contract where the guarantor is not a party to the arbitration agreement.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to Tanroads, the respondent
- On appeal from
- High Court of Kenya at Mombasa
- HCC Case No. 8 of 2010
- Jurisdiction invoked
- First appeal / appeal as of right from the High Court ruling (Civil Appeal No. 14 of 2015 under the Court of Appeal's appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kundan Singh Construction Limited & another v Tanzania National Roads Agency [2019] KECA 45 (KLR)", Case Analysis (2019). Civil Appeal No. 14 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/45/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.