The Doctrine of Res Judicata: A Pillar of Legal Certainty and Finality

Introduction

The doctrine of res judicata, derived from the Latin term meaning "a matter already judged," is a cornerstone of legal systems worldwide. It embodies the principle that a final judgment by a competent court should be conclusive, thereby preventing the same parties from re-litigating identical issues. This doctrine serves as a critical mechanism to maintain the finality and stability of legal proceedings, ensuring judicial efficiency, safeguarding the integrity of the justice system, and protecting parties from the financial and emotional burdens of repeated litigation.

Legal Framework and Elements of Res Judicata

In Kenya, the doctrine of res judicata is codified under Section 7 of the Civil Procedure Act, which provides:

"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."

?To invoke the doctrine of res judicata, certain elements must be conjunctively satisfied:

1. The suit or issue must have been directly and substantially in issue in a former suit.
2. The former suit must have been between the same parties or parties under whom they or any of them claim.
3. The parties must have been litigating under the same title.
4. The issue must have been heard and finally determined in the former suit.
5. The court that heard and determined the issue must have been competent to try the subsequent suit or the suit in which the issue is raised.

?Judicial Interpretation and Case Law

The Supreme Court of Kenya, in Independent Electoral & Boundaries Commission vs. Maina Kiai & 5 Others [2017] eKLR, affirmed that all these elements must be met for the doctrine of res judicata to apply.

The doctrine is not limited to issues explicitly decided in the prior case. In the seminal case of Henderson v. Henderson (1843) 3 Hare 100, the court held that res judicata applies not only to points that were decided but also to every point that might and ought to have been brought forward in the earlier suit.

The Court of Appeal of Kenya, in John Florence Maritime Services Limited & Another vs. Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR, reaffirmed that res judicata ensures efficient use of court resources and timely termination of cases. It prevents courts from being clogged with repetitive cases, fosters the stability of judgments, reduces inconsistencies across court decisions, and upholds public confidence in the judicial system.

?Practical Steps for Advocates to Avoid Res Judicata Issues

Advocates play a crucial role in ensuring that their clients' suits are not dismissed on the grounds of res judicata. Here are key steps to mitigate such risks:

1. Conduct Thorough Research on Previous Litigation Before initiating a new suit, comprehensively investigate whether the matter or any related issues have already been litigated. This involves examining court records, judgments, and orders involving the same parties or their representatives. Further, carefully scrutinize the parties involved, the subject matter, legal issues, and cause of action in prior cases to determine if they are directly and substantially the same as those in the intended suit.
2. Examine the Competency and Jurisdiction of the Previous Court Verify whether the court that decided the former suit had the appropriate jurisdiction and competence to adjudicate the matter. If the previous court lacked jurisdiction, argue that the res judicata doctrine does not apply. Further, determine whether the decision of the previous court was final and on the merits. If the decision was procedural or did not resolve substantive issues, res judicata may not be applicable.
3. Engage in Settlement Discussions or Alternative Dispute Resolution (ADR) Explore alternative dispute resolution mechanisms, such as mediation or arbitration, before filing a suit. This can help avoid potential res judicata issues while still resolving the dispute. Additionally, engage with opposing parties to negotiate settlements or compromises, potentially avoiding litigation altogether.
4. Advise Clients on Legal Strategy : Ensure that clients understand the risks associated with res judicata and the importance of disclosing all relevant information about past litigation. This enables a comprehensive legal strategy that considers all potential issues. Also, formulate a strategy that anticipates possible res judicata objections and incorporates steps to mitigate these risks.