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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 100 of 2017· [2019] KECA 893 (KLR)

Salama Beach Hotel Limited & 3 others v Christopher Orina Kenyariri T/A Kenyariri & Associates Advocates

Court of Appeal
14 March 2019
5,983 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 revive a settled legal fees dispute by filing a fresh suit with new parties added.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Mombasa against a ruling of Korir, J. of the High Court at Malindi dated 28th September 2017, which struck out the appellants' suit (H.C.C.C No. 20 of 2015) as res judicata. The dispute arose from an advocate/client relationship: the respondent advocate filed eleven bills of costs against the appellants; after taxation and references, Angote, J. directed re-taxation and dealt with claims of payments made. The appellants then filed an Originating Summons and applications seeking review, all of which were dismissed, before instituting H.C.C.C No. 20 of 2015 claiming they had paid some Kshs.14,000,000, far above the taxed costs. The respondent successfully applied to strike out the suit as res judicata under Section 7 of the Civil Procedure Act. The Court of Appeal first found that the respondent's striking-out application itself was not res judicata, since no prior court had conclusively determined whether the suit was res judicata or whether the 3rd appellant had standing. However, on the merits the court agreed with the High Court: the issues in the suit - the legal fees payable and whether payments made had been factored into taxation - had been conclusively determined by Angote, J. and Chitembwe, J. Joining the 3rd appellant did not evade the doctrine; litigating concluded matters through surrogates is unacceptable. The court affirmed the decision below, dismissed the appeal, and awarded costs to the respondent.

Key legal issues

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01

Whether the respondent's striking-out application of 5th June, 2017 was itself res judicata

Holding

It was not, because the issues of the suit's res judicata character and the 3rd appellant's standing had never been conclusively determined in prior proceedings; Chitembwe, J. had deferred the standing question to the hearing and made no definitive res judicata finding on the suit.

Reasoning

The court reviewed the prior rulings of Chitembwe, J. and found that although res judicata and the 3rd appellant's standing had been raised repeatedly, no judge had made a conclusive determination on the suit itself; prior findings related only to interlocutory applications. Quoting Shabhal, the court held that res judicata requires conclusive adjudication, which was absent.

p. 7
02

Whether the appellants' suit H.C.C.C No. 20 of 2015 was res judicata

Holding

Yes. The issues in the suit - the legal fees payable and whether amounts paid by the appellants were factored into the taxation - had been heard and finally determined by Angote, J. and Chitembwe, J. in proceedings between the same parties.

Reasoning

The references, the OS and the suit all related to the legal fees payable to the respondent and whether payments made were accounted for in taxation. Angote, J. had dealt with the claimed payments, holding the additional-documents issue was 'water under the bridge', and Chitembwe, J. found the suit an abuse of process breaching res judicata. Adding the 3rd appellant as plaintiff did not alter the analysis.

p. 7
03

Whether the 3rd appellant lacked standing as a non-party to the taxation proceedings

Holding

The court did not rest its decision on standing; it noted Korir, J. found the 3rd appellant a necessary party, and held that its introduction did not defeat res judicata since it was a party at some point in the taxation proceedings.

Reasoning

The court observed that Chitembwe, J. had earlier declined to make a definitive finding on the 3rd appellant's locus standi, deferring it to the hearing. Ultimately, the court adopted the reasoning that the 3rd respondent had been a party at some point in the taxation proceedings and its joinder could not upset a concluded res judicata finding.

p. 7

Legal principles established

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  • All the elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively before a suit or issue is barred
  • Res judicata requires a prior adjudication that conclusively determined the rights of the parties; a mere raising of the issue without definitive determination does not create res judicata
  • Bringing new parties or surrogates onto a claim does not avoid the res judicata bar on relitigating a concluded matter

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
High Court of Kenya at Malindi
H.C.C.C No. 20 of 2015
Jurisdiction invoked
First appellate jurisdiction over the High Court (ruling in H.C.C.C No. 20 of 2015); no specific constitutional or statutory provision invoked

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, "Salama Beach Hotel Limited & 3 others v Christopher Orina Kenyariri T/A Kenyariri & Associates Advocates", Case Analysis (2019). Civil Appeal No. 100 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/893/eng@2019-03-14

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