Frequently, especially in applications for subsequent interlocutory injunctions, a preliminary objection may be raised to the effect that the application is res judicata. Why one would need a subsequent injunction is usually because the initial one has lapsed and the other side is engaged in fresh acts that need restraining to maintain the status quo. The objection may also be raised in applications to strike the defence where an application for summary judgment had initially failed.
How objection based on res judicata is raised
Res judicata is raised either in pleadings or at the trial. It seeks to implore the court to deny audience to a party alleged to be raising matters already decided by a court of competent jurisdiction between the same parties.
A preliminary objection is usually to the effect that the present application and/or suit is res judicata and, therefore, incompetent. In argument, the objector likely alleges in support that the present application, for instance, is similar to a prior and specified application in the same suit which was settled by the court. In alternative, the objector may argue that the issues raised in the present application were raised and finally decided in the previous application.
This usually presents unfamiliar waters to the applicant's side especially to the experienced practitioners who are used to res judicata as a challenge only against the main suit. This article addresses generally this frequently used doctrine of civil procedure. The article goes the extra mile to consider res judicata in preliminary applications.
Doctrine of Res judicata defined
According to Kuloba J in Judicial Hints to Civil Procedure, the expression 'Res judicata' means a thing or matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Res judicata is essentially a bar to a subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.
The doctrine of res judicata applies to both suits and applications whether they be final or interlocutory. The doctrine restricts the courts in exercising their jurisdiction if the matter in the new issue was heard and finally decided by a competent court.
To paraphrase the Honourable Court of Appeal in Gichuki v. Gichuki [1982] KLR 285 the doctrine operates where the dispute is between the same parties and involving the same cause of action as another matter which had previously been adjudicated by a court of competent jurisdiction. In the above case, the appellant was challenging the trial judge's ruling in an application to have the dispute referred to arbitration by elders. The judge had found that the matter in question had been decided previously by a resident magistrate. The court upheld the trial judge's decision.
Rationale of the Doctrine of Res judicata
The rationale of the doctrine of res judicata was stated in Timotheo Makenge-v-Manunga Ngochi CA(Nrb) Civil Appeal No. 25 of 1978. Wambuzi JA (as he then was) was of the view that the doctrine is predicated in the public interest need to have an end to litigation. There is also need to prevent abuse of the court process by unscrupulous litigants against hapless defendants. The doctrine also helps prevent parties from gambling with justice system such that where a party is awarded a judgment by one court, he tries another to see whether he can hopefully raise his stakes.
The courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. Chances are, if they do, they will end-up contradicting the earlier decisions and making a fool of their colleagues.
Section 7 of the Civil Procedure Act
Sections 7 of the Civil Procedure Act define the doctrine of Res judicata as applying to a suit or issue in which matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. The law is as clear as a bell. Section 7 of the Civil Procedure Act is mandatory in its prohibition:
"No court shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."
The test for application of res judicata
Kuloba quoting Law Ag V-P in Kamunye and Others-v-Pioneer General Assurance Society Ltd [1971] EA 263 at 265 has stated the test whether or not a suit is barred by res judicata thus:
"Is the Plaintiff in the second suit trying to bring before the court, in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon? If so, the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. The subject matter in the subsequent suit must be covered by the previous suit for res judicata to apply"
Conditions for doctrine of res judicata to apply
The conditions for application of doctrine of res judicata were authoritatively laid down in Willie v. Muchuki & 2 others (Plaintiff/Applicant's authorities' No. 8) to be three. The court in the case held:
"For the doctrine of res judicata to apply, three basic conditions must be satisfied. The party relying on it must show;
(a) That there was a former suit or proceeding in which the same parties as in the subsequent suit litigated.
(b) The matter in issue in the latter suit must have been directly and substantially in issue in the former suit.
(c) That a court competent to try it had heard and finally decided the matter(s) in controversy between the parties"
The court was upholding the ruling of Bosire J (as then was) in Nairobi HCCC No. 1322 of 1993 Caltex Oil(Kenya) Ltd-versus-Mohamed Yusaf & Others.
In Bulhan & Another v. Eastern and Southern African Trade and Development Bank (Plaintiff/Applicant's authorities' No. 9) it was stated by the court that "matter in issue" under section 6 of the Civil Procedure Act does not mean any matter in issue in the suit but has reference to the entire subject in controversy.
The court put it succinctly: "The subject matter must be covered by the previously instituted suit and not vice versa." The court in the above case was clear that for res judicata to apply, the issues alleged to be similar must have been raised in the earlier suit, heard and finally determined or decided by the court.
In the Bulhan case, the court found that a court's decision on an application for temporary injunctions under order 39 does not decide the issues in question in the main suit. The orders and views or the basis thereof are not final. The suit must still go for trial and however emphatic or positive the statements or findings of the judge, the same are not conclusive and final.
Scope of the Res judicata doctrine
The decided cases interpret the explanation above on res judicata as implying a wide scope of the doctrine of res judicata. In Rajwani versus Roden (Respondent's List No. 17) the court stated that
"Estoppel per res judicatam applies not only to what is expressly decided but also to what is assumed and admitted and is fundamental to what is decided."
The above resonates with decision in Yat Tung Investment Co Ltd vs Dao Heng Bank and Another [1975] AC 581. It suffices to quote the decision of the court therein:
"But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings."
The Court of Appeal in Pop-in (Kenya) Ltd & 3 others versus Habib Bank AG Zurich (No. 19) quoted the above passage to hold that:
"the plea of res judicata applies not only to points which the court was actually required by the parties to form opinion and pronounce judgment, but every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have been brought forward at the time."
Res Judicata applies to interlocutory applications
The doctrine applies not only to main suits but also to interlocutory applications. The court in Kanorero River Farm Ltd and 3 others v. National Bank of Kenya Ltd[2002]2 KLR 207 considered and affirmatively settled that issue. The court in that celebrated case held that the doctrine applies to both suits and applications whether they be final or interlocutory.
The court in reaching this conclusion upheld the definition of suit entailed in section 2 of Civil Procedure Act. The court stated in that regard:
"A suit is defined by the Civil Procedure Act as any civil proceedings commenced in any manner prescribed by Civil Procedure Rules. Therefore any determination of such an application by a court of competent jurisdiction would in appropriate circumstances operate as the plea in bar called res judicata."
Similar application not res judicata if grounded on new facts
There is no doubt that res judicata applies to suits between the same parties involving the same cause of action which had previously been adjudicated by a court of competent jurisdiction. The rationale is prevent abuse of the process of the court by vexing the same party on the same facts in the same matter twice.
But res judicata cannot reasonably be construed to prevent a party who seeks the court intervention to prevent a fresh and irreparable assault on his right. In the Kanorero case (supra), the court held on this point that:
"The parties in this suit were not precluded from instituting another application for an injunction as long as the fresh application was grounded on new facts which could not have been relied on in the earlier application." (emphasis mine)
The facts and holding in the Kanorero Farm case
The facts in Kanorero Farm case were that the defendant/chargee had initially sought power of sale over properties belonging to the plaintiffs. The plaintiffs filed a suit challenging the validity of the statutory notices and sought an injunction restraining the defendant. The parties by consent agreed to have the application for interlocutory relief marked as settled and the defendant to be at liberty to issue fresh notices. The defendant thereafter issued fresh notices of their intention to exercise its statutory power of sale. The plaintiffs again filed suit challenging the validity of those statutory notices, claiming that the statutory power of sale had arisen and that the intended sale was in contravention of the mandatory provisions of the Auctioneers Rules. The defendants opposed the application on the grounds that the issue was res judicata and that the application was incompetent.
The court was of the view that a determination on basis of consent by the parties had the same effect as a determination after a hearing and argument. Even then, the court concluded that the second application could not be precluded
In that case, the court was of the view that the issue in the initial application was whether or not the defendant could validly exercise its power of sale in furtherance of the statutory notices that it had already issued. Further that the issue was implicitly resolved in favour of the plaintiffs and hence the order that the defendant issue fresh notices and pay plaintiffs' costs of the application. The court then proceeded to confront the question whether in the circumstances of the satisfactory determination of the first application the plaintiffs could institute a fresh and similar application for interlocutory relief. On the question, the learned judge's conclusion was unequivocal:
" In my judgment provided the fresh application is grounded on new facts which could not have been relied on in the earlier application, it would not be precluded by the doctrine of res judicata."
In the courts view, the consent order allowed the defendant to serve fresh notices. A new factual situation was thus created.
Conclusion
In conclusion, it is settled that the doctrine of res judicata applies to applies to applications with the same force as it applies to main proceedings. Hpwever, an application which would otherwise be res judicata is not if based on new facts which could not have been relied on in the earlier application.
