Accredo AG & 3 others v Steffano Uccelli & another [2019] KECA 385 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot relitigate a decided dispute through a fresh application, and court orders must be obeyed until discharged.
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 matters raised in the respondents' preliminary objections were merited, i.e. whether the objections were founded on pure points of law or on disputed facts
- 2.Whether the Application dated 8th January 2018 was res judicata and whether the High Court lacked jurisdiction to entertain it
- 3.Whether the learned Judge erred in issuing the orders he did in the impugned ruling, including directing compliance with the orders of 30th April 2015
- 4.Whether the award of costs against the 1st, 3rd and 4th appellants was proper
Key legal issues
#Whether the respondents' preliminary objections were founded on pure points of law
The objections (res judicata, lack of jurisdiction, doctrine of finality) were pure points of law ascertainable from the record and required no additional evidence.
The test for a preliminary objection is that it must rest on a pure question of law with no proper contest as to facts. The record itself disclosed the ruling of 30th April 2015 setting aside the consent decree over the 2nd appellant's shareholding, management and control, and this Court's judgment of 15th December 2017 confirming it. Because the elements of res judicata were discernible from the record and were not unclear, the objections did not require evidence and were properly upheld.
Whether the Application dated 8th January 2018 was res judicata
Yes. All the conjunctive elements under section 7 of the Civil Procedure Act were satisfied; the shareholding and management of the 2nd appellant had been conclusively determined in the ruling of 30th April 2015 and confirmed on appeal.
The consent decree, its setting aside on 30th April 2015, and the confirmation by this Court on 15th December 2017 all dealt with enforcement of the alleged Milan judgment and the shareholding, management and control of the 2nd appellant. The Application, whatever its wording, sought the same relief, amounting to a disguised review and appeal against the 30th April 2015 orders, which the High Court lacked jurisdiction to grant. The elements were satisfied and applied equally to applications.
Whether the learned Judge acted within his mandate in issuing the orders he did
Yes. Directing full compliance with the orders of 30th April 2015, which had not been obeyed, was proper, and this Court's judgment of 15th December 2017 superseded all other High Court orders on the decree, shareholding and management.
It was not disputed that the orders of 30th April 2015 remained uncomplied with. The obligation to obey court orders is plain and unqualified, extending even to orders believed irregular or void. The High Court was therefore entitled to direct compliance before addressing anything else, and this Court saw no reason to fault the Judge.
Whether the costs order against the 1st, 3rd and 4th appellants was erroneous
No. Costs lie in the discretion of the court and no basis was shown for interfering with the Judge's exercise of that discretion.
The Court reiterated that costs are within judicial discretion. The appellants advanced nothing to demonstrate that the discretion was improperly exercised in imposing costs on the 1st, 3rd and 4th appellants only, with the directors and shareholders of the 2nd appellant excluded from the costs order.
Legal principles established
#- A preliminary objection may only be raised on a pure question of law, where there is no proper contest as to the facts; if evidence is required to substantiate it, it must fail.
- The conjunctive elements of res judicata under section 7 of the Civil Procedure Act apply in equal measure to applications, not only to suits.
- A party cannot relitigate a conclusively determined issue through a fresh application, however artfully crafted; judicial craftsmanship cannot circumvent res judicata.
- Every person against whom a court order is made is under a plain and unqualified obligation to obey it unless and until it is discharged, even where they believe it to be irregular or void; a party in disobedience cannot seek further assistance from the court.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The 1st, 3rd and 4th appellants shall bear the costs
- 3.The High Court's ruling upholding the preliminary objections and striking out the application dated 8th January 2018 is affirmed, including the direction that the orders of 30th April 2015 be complied with in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C.C.C. No. 118 of 2009
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal Rules (Rule 86(1) referred to on grounds of appeal)
Relief refused
#The appellants' appeal against the striking out of their application dated 8th January 2018 (injunctions, directions on execution, judgment on admission, restoration of shareholding)
The matters sought were res judicata, having been conclusively determined by the ruling of 30th April 2015 and confirmed by this Court on 15th December 2017; the preliminary objections were pure points of law
Interference with the costs order imposed on the 1st, 3rd and 4th appellants
Costs are discretionary and nothing was shown that the learned Judge failed to exercise his discretion properly
Costs
Appeal dismissed with costs to the respondents; the 1st, 3rd and 4th appellants shall bear the costs (the 2nd appellant's directors/shareholders not saddled with costs).
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.
The upshot of the foregoing is that we find the appeal lacking merit and is hereby dismissed with costs to the respondents. The 1 st, 3rd and 4th appellant shall bear the costs.
Thus a preliminary objection may only be raised on a 'pure question of law'. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.
To constitute res judicata, there must be adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy.
Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.
It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Choi v Exotic Gates Limited; Owuor (Objector) (Enviromental and Land Originating Summons 155 of 2019) [2025] KEELC 4536 (KLR)[2025] KEELC 4536 (KLR)16 Jun 2025
- Offshore Trading Company Limited v Attorney General & 2 others; Kenya Deposit Insurance Corporation (Interested Party) (Environment & Land Petition 4 of 2021) [2025] KEELC 106 (KLR)[2025] KEELC 106 (KLR)23 Jan 2025
Cite this brief
#Cite this brief
Caselaw, "Accredo AG & 3 others v Steffano Uccelli & another [2019] KECA 385 (KLR)", Case Analysis (2019). Civil Appeal No. 43 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/385/eng@2019-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.