Res Judicata

Res Judicata – one of factors limiting the jurisdiction of court.  this doctrine requires that there should be an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then parties should not be allowed to litigate over the same issues again.  This doctrine requires that one suit one decision is enough and there should not be many decisions in regard of the same suit.  It is based on the need to give finality to judicial decisions.  Res Judicata can apply in both a question of fact and a question of law.  where the court has decided based on facts it is final and should not be opened by same parties in subsequent litigation.   The only way to avoid it is where there is a pending appeal or where an appeal has been successful and therefore the decision has been reversed then one cannot plead res judicata.  If no appeal lies of right or an appeal has been dismissed, under Section 7 one can plead res judicata, the parties will not be allowed to litigate on the same issue.

The object of Section 7 is
To avoid a situation where a party is vexed twice for the same cause;
It is in the interest of the State and everyone to have an end to litigation, parties cannot litigate forever;
A judicial decision made by a court of competent jurisdiction holds as correct and final in a civilised society.

It is a combination of public policy and private justice and even in criminal court it is against public policy to charge someone once they have been dismissed by a competent court.  a man shall not be vexed twice for the same cause.

One also cannot keep revisiting litigation, if the court has already decided it should be final and private justice will require that there be an end to litigation.

Provisions of Section 6 and provisions of Section 7 – jurisdiction of 6 is to stay, there is no power to dismiss and once the proceedings are stayed, the suit which is heard first, then one has a chance to plead res judicata under Section 7 if there is no appeal filed.

With regard to res judicata it relates to a matter already adjudicated upon while sub judice relates to a matter pending for trial or judicial enquiry.

one of the two doctrines bars trial of the suit where the matter in issue has already been adjudicated upon in a previous suit this is res judicata, sub judice bars trial of a suit in which the matter is pending.

Under what circumstances can one raise objection on the basis of res judicata and sub judice?  Once the matter is decided unless there is an appeal you can raise objection under res judicata but where there is an appeal one can raise sub judice

Difference between res judicata and estoppel – Estoppel is a doctrine of equity which has been accepted for century as a mode of ensuring justice is done as between parties where the law does not satisfy that requirement.  One may look at res judicata as a branch of the law of estoppel and we have estoppel by verdict or estoppel by judgment or by verdict and the rule of constructive res judicata is nothing else but a rule of estoppel.

Canada Dominion Sugar Co. Ltd v Canadian National Steamships Ltd (1947)AC 46 – ESTOPPEL BY RECORD

Res Judicata arises from a decision of court but estoppel arises from acts of parties where there is an existing contract and where a party breaches a contract by reneging from a promise the other party can stop the other party by estoppel. The broader concept of estoppel is founded on doctrines of equity, if one by conduct has induced another to a position they cannot turn around and renege.   While res judicata bars multiplicity of suits, estoppel prevents multiplicity of representations.

Res judicata halts the jurisdiction of the Court and that is why it is one of the factors affecting jurisdiction of the court.  The effect of this is that the court is prevented from trying the case in limine i.e. from the beginning. Estoppel is only a rule of evidence and the effect is to shut the mouth of the party, that one cannot say one thing after having said the other.

The rule of res judicata presumes conclusively the truth of the decision in the former suit while the rule of estoppel prevents a party from denying what he called the truth.

Explanations which are given under these Section 7 are important as they give an illustration of what happens in situations where one can plead res judicata, matters in issue, matters constructively in issue.

Matters in issue may be classified as
Matters directly and substantially in issues; and
Matters collaterally or incidentally in issue.

Matters that are collaterally and incidentally in issue are not important.  This is because we say a matter is in issue when one party alleges it and the other party denies it but if it does not help the court to adjudicate upon the rights of the parties, it is collaterally in issue.  The only matters that are important in res judicata are only those that are matters that are in issue.

Matters would be in issue if
they are alleged by one party and denied by the other and the court must adjudicate upon that issue to determine the rights of the parties.  For example where a party sues another for rent due and the other party denies, the claim for rent is the matter in respect of which the relief is sought, so rent is therefore directly and substantially in issue.   The court must make a finding to grant reliefs sought by the parties since the matter is in issue.  A matter can also be in issue constructively.  It is said to be constructively in issue when it might and held to have been a ground of attack or defence in a previous suit.  For example where one wants to sue a minor and one of the defence would raise the point of minority which means one cannot proceed since the minor lacks capacity.  Contracts of this nature are voidable, upon attaining the age of majority it may happen that that minor may want to raise the point of minority as defence, if that point ought to have been raised in that suit earlier as a point of defence and was not raised, it can be argued that the matter was constructively in issue and it can be raised in this suit as it ought to have been raised in the previous suit.

A foreign judgment can affect the jurisdiction of the court but in certain circumstances.  If the foreign judgment has

been pronounced by a competent court of jurisdiction,
it has been given on merit,
founded on the correct issue of international law which must not have refused to recognize the law of Kenya if applicable,
the proceedings is in conformity with rules of natural justice,
not obtained by fraud,
 where it sustains a claim founded on a breach of any law in force in Kenya.
 if these conditions are satisfied, that decision would affect the jurisdiction of this country to proceed with the suit.

Jurisdiction is a fundamental requirement coz it can take away the right of the court to hear and determine a suit.


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