By Newton Arori
‘The courts have never accepted res judicata as an absolute principle of law which applies rigidly in all circumstances irrespective of the injustice’ – The Court of Appeal of Singapore in Management Corporation Stratta Title Plan No.301 v. Lee Tat Development Pte Ltd  S GHC 234.
It is a settled legal principle that once a matter has been decided by a court of competent jurisdiction, the same matter cannot be reopened. This is the principle of res judicata, which is Latin for ‘the thing has been decided.’
The doctrine of res judicata in Kenyan law is anchored on Section 7 of the Civil Procedure Act which states, “No court shall try any suit or issue 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.”
Res judicata can therefore be divided into two broad categories: cause of action res judicata and issue res judicata. Cause of action res judicata arises where the cause of action in the latter proceeding is identical to that in the earlier proceedings, the later having been between the same parties and having involved the same subject matter.
It extends to a point which might have been raised but was not raised in the earlier proceedings. Issue res judicata, on the other hand, arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided in previous proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to reopen that issue.
In the case of Henderson v. Henderson (1843-60) ALL E.R 378, the English Court explained the doctrine of res judicata in the following words:
“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of ‘res judicata’ applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, 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.”
What is the reason for this principle? In the case of Kamunye & others v. Pioneer General Assurance Society Ltd  E.A. 263, the court explained thus: “The rationale behind res judicata is based on the public interest that there should be an end to litigation, coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases…”
However, as should be clear by now, res judicata does not apply to all cases. Sometimes, courts have made exceptions. So, what are some of these instances? We shall discuss two, as decided by Kenyan courts.
In the case of AMN v. PMN (2016) eKLR, the applicant moved to court seeking that the respondent be compelled to provide for his daughter in upkeep. For his part, the respondent opposed the application contending that the issues raised were res judicata because they had already been decided in previous proceedings.
It was indeed true that in the said previous proceedings, the court had dismissed an application seeking to have the respondent compelled to pay fees for his daughter. The reasons for dismissal of the previous suit were, among others, that the respondent had demonstrated his inability to support the child due to lack of funds.
The court noted that the gist of the present case revolved around the question of parental responsibility and parental care, just like in the previous case. Did it mean, therefore, that the present case was res judicata? In finding that the application was not res judicata, Lady Justice Muigai stated, “Res judicata is not applicable to children matters as it is not expressly provided for in Children’s Act 2001. Practically, it behoves, parents, family community and society to support the child in growth and development up to the stage the child or young adult has ability to fend for himself/herself. Therefore, naturally there will be upcoming issues with regard to the child to safeguard the child’s interest.” On that basis, the court proceeded to hear the present case.
Court’s power of review
In Benjoh Amalgamated Limited & another v. Kenya Commercial Bank Limited  eKLR, two companies moved to the Court of Appeal for one of two reliefs: either for the companies to be allowed to appeal to the Supreme Court, or in the alternative, for the Court of Appeal itself to review/set aside its previous decision.
In determining the application, the Court of Appeal first noted that the application for permission to appeal to the Supreme Court would not succeed. This was because the Supreme Court could not reopen a case finalised in 1998 by the Court of Appeal (then the highest court in the land). The judges observed that if the Supreme Court were to allow appeals from cases that had been finalised by the Court of Appeal before the Supreme Court was established, “it would trigger a turbulence of unmanageable proportions in the private legal relations in this country. Every party against whom the Court of Appeal delivered judgement in the past…would be entitled to approach the Supreme Court and ask for a reversal of the same.”
The question that remained to be addressed then was whether the Court of Appeal could review its own previous decision. In this regard, the court observed that the power of review is not expressly provided for in statute, noting, “there was tension between a court having such residual jurisdiction and the need to have finality in litigation, such that it was necessary to have a procedure which would ensure that proceedings would only be reopened when there was a real requirement for that to happen.”
The need to maintain confidence in the administration of justice made it imperative that there should be a remedy in a case where bias had been established and that might justify the Court of Appeal in taking the exceptional course of reopening proceedings which it had already heard and determined. The court noted, “The case-law on the subject of review jurisdiction shows that two principles seem to be in competition. There is the ‘principle on finality’ of litigation on the one hand, which does not support review and there is ‘the justice principle’ on the other hand which favours limited review predicated on the basis that the object of litigation is to do justice.”
The court relied on the case of Ladd v. Marshall 3 All ER 745, where the Court of Appeal set a threshold holding that in order to justify the reception of fresh evidence in a case already determined, three conditions must be fulfilled. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence or the result of the case; and third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible although it need not be incontrovertible. In the case of Taylor and another v. Lawrence and Another, it was held, “the Court has implicit powers to do that which is necessary to achieve the due objectives of an appellate Court, namely to correct wrong decisions to ensure justice between litigants, and to ensure public confidence in administration of justice. (