Maxwel George Murungaro Mbugua v Attorney General [2020] KECA 892 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once a court has finally decided your claim, you cannot bring the same claim again — even against the government.
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 High Court erred in dismissing the appellant's application for compensation on the ground of res judicata
- 2.Whether the appellant's grounds of appeal, which did not address res judicata, warranted interference with the High Court's exercise of discretion
Key legal issues
#Whether the appellant's compensation application was barred by res judicata
Yes. The High Court correctly found the issues had already been heard and determined in Kakamega Constitutional Reference No. 8 of 2013 and HCCC No. 160 of 2010 between the same parties before competent courts.
Section 7 of the Civil Procedure Act embodies the res judicata doctrine, whose elements the High Court found satisfied: same issues, same parties, same title, final determination by competent courts. The appellant had litigated the claim at least twice before. The Court of Appeal found no reason to disturb the judge's exercise of discretion, and the appellant raised no submission on res judicata on appeal.
Whether the appellate court could consider res judicata although the appellant's grounds of appeal did not raise it
Yes. The Court declined to turn a blind eye to res judicata as it was the principal ground of dismissal below, being a jurisdictional question.
Although the appellant did not address res judicata in his grounds or submissions, the Court held it could not ignore the issue since it was the basis of the dismissal. Kiage, JA emphasised that section 7 raises a crucial jurisdictional question that all courts are peremptorily prohibited from breaching, regardless of a litigant's grievance.
Legal principles established
#- The doctrine of res judicata under Section 7 of the Civil Procedure Act is a jurisdictional bar: a court may not try an issue directly and substantially in issue in a former suit between the same parties litigating under the same title that was heard and finally determined by a competent court.
- For res judicata to apply, the elements are: the issue was directly and substantially in issue in the former suit; the parties were the same or claiming under them; they litigated under the same title; the issue was heard and finally determined; and the former court was competent.
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Kiage, JA separately concurred, agreeing that the claim was res judicata and that the appeal must fail.
I have had the benefit of reading the Judgment of the learned Makhandia, JA in draft and do agree with his analysis and conclusions on this appeal.p. 2
- On appeal from
- High Court of Kenya at Kakamega
- HC Misc. Case No. 20 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appeal from High Court ruling)
Relief refused
#Compensation from the respondent for property destroyed during the 2007-2008 post-election violence
The application before the High Court was res judicata, the issues having been heard and determined in earlier suits between the same parties
Costs
The appeal is dismissed with no order as to 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 philosophy behind the principle of res judicata is that there has to be finality; litigation must come to an end. It is a rule to counter the all-too human propensity to keep trying until something gives.
The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunction, from entertaining such suit.
Therefore, for the doctrine of Res judicata to apply the following elements must be satisfied: the suit or issue was directly and substantially in issue in the former suit; the former suit was between the same parties or parties under whom they or any of them claim; the parties were litigating under the same title; the issue was heard and finally determined in the former suit; and the court that previously heard and determined the issue was competent to try the suit or the suit in which the issue is raised.
The upshot then is that the appeal lacks merit and is hereby dismissed with no order as to costs.
Issues in the judgment
#The coram lists three judges of appeal, but the judgment records that Odek, J.A passed on before the judgment could be delivered, so only two judgments were delivered.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samaki Industries Limited v Kenya Ports Authority [2021] KEELC 151 (KLR)[2021] KEELC 151 (KLR)6 Dec 2021
Cite this brief
#Cite this brief
Caselaw, "Maxwel George Murungaro Mbugua v Attorney General [2020] KECA 892 (KLR)", Case Analysis (2020). Civil Appeal No. 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/892/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.