| General.

For a partyto raise the issue of res judicata,the following are the required elements


A party is a person who is involved in a case and a person can be involved in a case either by alleging something against another person or they can be involved because the allegation is against them. Where an allegation is made against you, you become a party. You can also be a party to a suit by reason of being a representative e.g. executors of an estate, administrators, heirs assignees and successors in title. These parties we call them parties who claim for another person.



The action in a representative’s suit is instituted by a person in their representative’s capacity as distinguished from their individual capacity. It is important to note the difference between where a person is a legal representative or a party in a representative suit.


There are five elements needed to raise the plea of res judicata.

When a person is a party by virtue of being a defendant and a co-plaintiff.

Suppose A sues ‘B’ and ‘C’ and the court finds that C is the one to blame, can B thereafter institute a suit against C. A was driving along Ngong Road, and B was driving from the opposite direction and C drives from one of the off roads and collides into A and B. In his Defence B avers that it was C who caused the accident so he blames C and C in his defence blames B and the court finds that it was C who was to blame. B is discharged. The court decided on the issue of negligence which means that B can go to court on the issue of damages. The issue of negligence is res judicata having been decided upon but the issue of damages has not been decided. In order to know whether res judicata applies between co-defendants, 2 things must exist

  1. There must have been a conflict of interest between the co-defendants;
  2. It must have been necessary for the court to decide upon that conflict in order to grant the relief sought by the plaintiff;
  3. The questions between the co-defendants must have been finally decided; and
  4. The co-defendants must have been proper and necessary parties.




Same title does not necessary mean that it is the same subject matter. For Res judicata to succeed the same parties must have litigated under the same title in the former suit and in the subsequent suit. For this purpose same title means the same capacity or same heading which is not necessarily the same subject matter. Let assume that A sues B for title to a specific property A is suing for that property as an heir under customary law. If the case gets thrown out and A sues B again for adverse possession, the second case is Res Judicata. Another example Suppose A sues B for rent and in his pleadings B says that the house does not belong to A but in fact belongs to another person called C and the case is dismissed. Can A sue B and C for ownership. Yes!




There has to be a competent court. The former ought to be heard by a court of competent jurisdiction.




The matters directly and substantially in issue in the two suits must have been heard and finally decided by the former court.


Res judicata means that a matter has been brought before a court, submissions made to that court, and the court has exercised its judicial mind and then the court has upon exercising its judicial mind come to a conclusion and made a decision. All you have to show is that the court heard the case and issued a decision. You have to prove determination by either the order or judgment of the court.


  1. Issues of Facts
  2. Issues of Law
  3. Issues of mixed facts and law.

The rule is that decisions made by a court on facts of the case and on the applicable law will operate as res judicata in the subsequent suit. NB. When we talk about applicable law when we want law to operate as res judicata it has to be the same course of action and the law must still be the same, it should not have been amended.




The issue is not always necessarily the subject matter. Example. Suppose A files a case against B claiming rent, B files a defence and says that A does not own the house and in fact C owns it. The suit is about rent but the issue becomes ownership. The court has to decide on ownership to know who is owed rent. Therefore an issue is something that the court has to deliberate upon in order to determine the plaintiff’s right. Therefore in such a case you can say that the issue of ownership was directly and substantially in issue.


How to determine substantially for example A sold a watch to B and then A files a suit against B to recover 500/- being the purchase price for the watch. The plaint of A reads as follows

  1. A is a student at Parkland Campus and resides in Kilimani;
  2. That B is also a student at Parklands Campus and resides in Kilimani.
  3. That on the 12th January 2000 A sold and delivered a watch to B at an agreed price of 500/- and they go on to say
  4. That despite due demand that B has failed and/or neglected to pay the amount. The plaint goes on to give the date that the amount of 500/- was supposed to be paid.
  5. A prays for judgement against B and costs and interests.


Defence of B

  1. B admits the contents of paragraph 1 of the plaint i.e. that A is a student at parklands and resides at kilimani.
  2. B denies the contents of paragraph 2 and avers that he is not a student at Parklands Campus but infact a lecturer at the campus.
  3. That B admits that he bought the watch but denies that the price was KShs. 500/-.
  4. B states that the agreed price was KShs. 350/-
  5. B states that he in fact paid the 350/- at the end of the month.
  6. B prays for suit to be dismissed with costs.


What are the issues. What issues are directly and substantially in issue.


  1. is A a student at tigoni campus?
  2. is B a student at tigoni campus
  3. did B buy a watch from A was there a transaction?
  4. Did B pay A 350/- or any other amount at all? Was there payment?
  5. Was the agreed price 350/- or 500/-.


The last 3 issues are directly and substantially in issue.


Even though the fact that B bought a watch from A is admitted, it is an issue because the court must pronounce a decision on it before it can dispose of the case. What is important is the necessity of the action. The court must of necessity make a decision.


Another example of Directly and Substantially in issue.


NB. A matter can be directly and substantially in issue even though no relief is sought or claimed under it.


If A sues B for rent, and B pleads that the house does not belong to A therefore here B is claiming that I don’t need to pay rent coz the house belongs to me. Therefore he is not liable to pay rent to anybody. What is the relief claimed? The issue directly and substantially is ownership.


An issue can be in issue either actively or constructively. By constructively, in issue means that the issue could and ought to have been a ground of defence or attack in the previous suit but it was not raised. Actively in issue means that the issue was a ground of attack and defence in the previous suit and that it was in fact raised and used. Constructively means for example let us assume that a minor is sued for breach of contract, we all know that a minor is not liable in contract but as long as the limitation period has not expired, it means that that particular contract can still form the basis of a suit when that minor becomes a major. So lets assume you sue a minor for breach of contract and the minor does not raise the defence of his minority and judgment is entered against him? Suppose many years after judgment is entered against that minor. Then a few years later, can the minor go to court this time raising the issue of his minority.


Constructively means that he could have raised the issue of his minority and ought to have raised it but he did not. The subsequent suit is res judicata because it brings up the same issues. The essence of res judicata and object is that people don’t keep on taking each other to court on the same matter.


Under jurisdiction – what if there is a case in a foreign court? Section 9




A Suit is commenced or instituted in the following ways

  1. Plaint
  2. Originating Summons
  3. Notice of Motion;
  4. Petition;
  5. Appeal.
  6. Case stated.


Essential Ingredients of a Civil Suit or a checklist.

  1. There must be a court of competent jurisdiction
  2. There must be parties
  3. There must be a course of action
  4. There must be pleadings
  5. There must be a subject matter
  6. There must be relief sought and prayed for;
  7. There must be service of those pleadings; service and summons
  8. There must be appearance.



2. There must be parties: You must immediately ask yourself as to who are the parties to the suit that you are going to institute because the law varies on the type of parties and so does the procedure. E.g. you will ask yourself who is my party, how old is he because if he is below 18 then he will have no capacity to sue or be sued.


Parties who do not have capacity under Order XXXI are persons of unsound mind and minors. They do not have the capacity and if you directly sue them your suit will be dismissed.

Again there are guidelines for example when the government s a party. You have to give a statutory notice of thirty days to the attorney general of your intention to institute legal proceedings. The Attorney General is mostly the party on behalf of the Government. Get a copy of the Government Proceedings Act Cap 40.


There is also the element of the joinder of parties and it is thus important to look at parties i.e. whether the situation justifies joinder of parties.


Order 1 provides for situations in which one can have a joinder of parties and the general rule it that parties will be enjoined where the right to relief arises from the same transaction in cases of plaintiffs or in cases where liability arises from the same situation as in accidents.


Read Order 1


Joinder of Defendants Order I Rule 3

There is a procedure for misjoinder of parties, for a non-joinder and for joinder. Having a misjoinder or non-joinder causes delays so it is important that you know the parties to your suit.




NB. THIRD PARTIES: In some cases you may find that a person has been sued i.e. ‘A’ sues ‘B’ and ‘B’ is the one who is your client. This is a suit where the defendant intends to indemnify themselves against a claim by implicating a third party.


The procedure for joining a 3rd party is different.


A third party will be brought in after seeking leave to enjoin a 3rd party. Application by way of a Chamber Summons supported by an Affidavit and if the court grants it, you issue the 3rd party with a notice of enjoinder. Leave to issue the 3rd party with a notice cannot be issued against the government unless you can convince the government that the relevant governmental department is aware of the claim.




The Plaintiff must have a right to sue the defendant. The right will arise from the fact that the plaintiff was wronged. You are required to inform the person that they have wronged you and give them time to make good within a stipulated time. If they don’t make good within the stipulated time, then you file the suit.


First you have to send a demand letter and the cause of action arises out of a right. It has to be a right that is recognised by the Laws of Kenya.


Law of Limitation – you must know whether you have a course of action or you may find that you are actually out of time.




Civil cases are commenced by way of certain documents being presented to the court. All these are called pleadings.




To select the court so that you can know what sort of pleadings to file and what procedure to use.




Reliefs are those things that you pray the court for. They are remedies that you are seeking from the court. When you litigate you must seek specific prayers and the court must be capable of giving the prayers.