In this Hot From The Bench, LawAfricas Charles Kanjama looks at the question of whether and how much the doctrine of res judicata, which forms part of the wider principles of estoppel, applies in interlocutory applications is becoming ever more a puzzling matter for our courts. How exactly shall courts interpret the Court of Appeal decision in Uhuru Highway Development Ltd v Central Bank of Kenya?
There may have been a time, hidden in the fading past, when the principles of res judicata were clearly demarcated to apply to suits but not to interlocutory applications. There was a time when the provisions of section 7 of the Civil Procedure Act were applied only to civil suits dealing with a matter for which judgment had been previously entered. (see R Kuloba, Judicial Hints on Civil Procedure).
It is not to say that similar interlocutory applications could be brought in unlimited succession within the same suit, for that would be an abuse of the court process. Yet section 7 of the Kenyan Civil Procedure Act was limited in application to suits alone. All that, as Justice Kwach would say, is now water under the bridge.
In Mburu Kinyua v Gachini Tuti (1978) the appellant applied to set aside default judgment entered against him, but failed to annex his proposed draft defence. The application was dismissed. The appellant chose not to appeal but to file a second application where he remedied the absence of annexed defence. The judge ruled that the first application was not dismissed for want of form but because it lacked merit. He dismissed the second application for being res judicata.
On appeal from the second dismissal order, the Court of Appeal in a 2–1 majority decision, affirmed that the second application was res judicata. Wambuzi and Law, JJ.A., agreed that the first application had been decided on its merits, and that the issue of a bona fide defence was constructively a matter in issue that could therefore not be re-litigated. Madan J.A. disagreed with this ratio on the ground that special circumstances obliged the court to admit more than one application until its conscience came to rest. Yet even he took it as settled law that “the liberty to present more than one application… is also of course subject to the rule of res judicata including what is laid down in explanation (4) to section 7, unless a special circumstance is present…”
Conversely in Russell v CBA (1985), on the question of whether an application for interlocutory injunction could be res judicata, the court held, “An interlocutory injunction deals only with the probable success of the plaintiff, and therefore is not a matter which is judicata outside those particular interlocutory proceedings.”
The difficult issues that the courts had not sufficiently elucidated were:
(1) whether and how much res judicata applied to interlocutory applications, in which no final judgment disposing of the suit had yet been given;
(2) whether the power of the court to prevent abuse of its process through re-litigation of interlocutory applications was governed by the specific statutory provisions in section 7 of the Civil Procedure Act;
(3) whether alternatively res judicata applied to interlocutory applications according to some non-statutory principles originating in common law;
(4) whether res judicata applied equally to subsequent interlocutory applications presented in the same suit, as to a similar interlocutory application presented in a subsequent suit that wasn’t itself res judicata; and
(5) whether there were any special circumstances that would oust the application of res judicata in relation to some interlocutory applications.
Then came Uhuru Highway Development Ltd v Central Bank of Kenya (1996) in which a quite valuable property was advertised for sale. The plaintiff filed suit against the chargee seeking to restrain further dealing in the suit property, and simultaneously brought an interim application for injunction. The interim application was heard inter partes and dismissed by the High Court, which decision was confirmed on application for stay and eventual appeal to the Court of Appeal. On further advertisement of the property by the chargee, the plaintiff brought a fresh application for injunction. The court dismissed the application for being res judicata and the ever-more litigious plaintiff appealed.
The court, in considering Mburu Kinyua v Gachini Tuti, was as firm as a rock. “The wider principles of res judicata apply to applications within the suit… There must be an end to interlocutory applications as much as there ought to be an end to litigation.”
Yet the court subtly entangled itself in conflicting ratio. At one point, it held, “interlocutory proceedings come within the purview of the word ‘suit’ for the purpose of the issue of res judicata by virtue of section 89 of our Civil Procedure Act.” In effect, the statutory provisions of section 7 would apply to interlocutory applications mutatis mutandis.
At another point, and with no less hesitation, the court held, “We have no hesitation whatsoever in saying that the general principles of res judicata cannot be limited by section 7 of the Civil Procedure Act and that the section is not exhaustive.” In effect, the statutory provisions would not restrict the application of the doctrine of res judicata.
Hence a decision on whether to grant interim injunction would be res judicata. The decision would not bind the trial court but would be binding for purposes of interlocutory applications. What principles would guide the application of this doctrine? Would the doctrine be applicable to a subsequent application in a subsequent suit which suit was itself not res judicata? These questions were left hanging for a subsequent bench.
In Mavoloni v Standard Chartered (1997), the chargor brought a suit and an interlocutory application to stop the exercise of an arisen statutory power of sale. The parties compromised the suit by a consent in which the chargor admitted owing a 55 million Kenya shillings debt to be paid by a certain date. Subsequently, stay pending appeal was granted on condition that a Kshs.30 million bond is deposited, which the chargor failed to do.
After a subsequent advertisement by the chargee of its intention to sell the property, the chargor instituted a fresh suit and made a fresh application for injunction. On application for injunction pending appeal from the refusal of the trial judge, the contention that the subsequent application was not res judicata was held to be an arguable one. The admission of indebtedness in the previous consent judgment was not necessarily an admission of the validity of a charge, and had therefore not compromised the entire suit.
The nebulous nature of the principles governing res judicata in interlocutory applications is manifested in a series of judgments in the High Court these last two years. In Garofalo v Security & Fire Ltd (2000), a claim for trademark infringement, an ex parte injunction was granted prohibiting the defendants from dealing in the goods in question. The defendants made an application to discharge the injunction order, which application was dismissed. They made a fresh application for the injunction orders to be “discharged, varied or set aside.” The late Justice Hewitt considered the issue of res judicata in applications and concluded that the issue of discharge/setting aside had already been litigated but that the issue of variation had not and was therefore not res judicata. Res judicata in interlocutory applications had now been reduced to issue estoppel!
In Wagiciengo v Ndwiga (2000) an application for injunction was dismissed because it was res judicata. A previous similar application had been made and refused in a previous suit which had been eventually withdrawn. On application for stay of execution pending appeal, the court held there was an arguable appeal on the contention that an interlocutory judgment would not operate as res judicata if the suit was thereafter withdrawn.
In Wa Mangoli v HFCK (2001) there was a subsisting order for vacant possession in a previous suit. The court reviewed its ex parte order and lifted the injunction on the ground that the applicant had abused the court process by failing to mention the subsisting order. The court however declined to consider whether the subsequent application was also res judicata.
In KCB v Oburi (2001) an application was dismissed because it did not have any grounds on the face of the application. A fresh application with grounds stated was dismissed for being res judicata. On appeal, the court reinstated the application because the previous one had not been decided on its merits and could therefore not be res judicata.
In Kanorero River Farm v National Bank (2002), Justice Ringera affirmed that res judicata would apply to interlocutory applications. In that particular application, the plaintiff was seeking a temporary injunction on the ground that the chargee’s statutory notice was invalid. The court held that in the circumstances of that particular case, new facts having arisen, the fresh application for injunction was not res judicata. It had begun to appear that the grounds for review under Order XLIV would double as the special circumstances to exempt an interlocutory application from being considered res judicata.
In National Irrigation Board v Kenya Commercial Bank (2002), the previous application for injunction failed because the Attorney General lacked locus standi to sue on behalf of the National Irrigation Board. While the matter was on appeal, the Board brought a substantially similar suit in its own name. On the question of res judicata, Justice Ringera stated in a non-reserved ruling, “the application for injunction having been determined at the inter-partes hearing, the matter is now res judicata… Once the matter had been heard inter-partes, I don’t see that it could be said not to have been heard on the merits.” So also in Ng’ang’a v DPFB (2002) Justice Ringera in a terse ruling dismissed an application for injunction on the ground that the same had been compromised in a previous suit and was now res judicata.
After reviewing these cases, one feels a lingering scepticism at how res judicata in interlocutory applications has been handled. One cannot help but retain some doubt at the clever way in which the courts have interpreted “suit” in section 7 to include all interlocutory applications but have then hesitated to interpret “matter in issue” to include constructive matters in issue. One doubts whether the framers of the statute really intended to apply the words “heard and finally decided” to interim applications, whether the applications are within the same suit or across suits that may themselves not be res judicata.
As concepts of estoppel and abuse of court process interact with the statutory provisions and ‘the wider principles’ of res judicata, one can only hope that somewhere in the future a more robust and circumspect doctrine of res judicata in interlocutory applications, if the doctrine really exists, would be developed.
Cases cited in this analysis:
Mburu Kinyua v Gachini Tuti  K.L.R. 69
Russell v Commercial Bank of Africa  LLR 1415 (CAK)
Uhuru Highway Development Ltd v Central Bank  LLR 2126 (CAK)
Mavoloni v Standard Chartered  LLR 634 (CAK)
Garofalo v Security & Fire  1 EA 184
Wagiciengo v Ndwiga  LLR 2381 (CAK)
Wa Mang’oli v HFCK  LLR 628 (CCK)
KCB v Oburi  LLR 3446 (CCK)
Kanorero River Farm v National Bank  LLR 1056 (CCK)
National Irrigation Board v KCB  LLR 1540 (CCK)
Ng’ang’a v Deposit Protection Fund Board  LLR 1483 (CCK)