res judicata

Res judicata: The finality of judicial decisions.

Res Judicata is the short for Res judicata pro veritate occipitur which is a Latin maxim. It finds its root in the English common law system which emphasizes judicial economy, consistency and finality.

Similarly, Roman law provides for the plea of ex captio res judicata which in essence challenges the claim of the plaintiff on the principle that “one suit and one decision is enough for any single dispute”.

The rationale of res judicata is to emphasize the finality of judicial decisions. Once a matter is finally decided by a competent court, no party can be permitted to re-open it in subsequent litigation.

The principle was first established in1843 in the judgment of Wigram VC in Henderson v Henderson (1843) Hare 00, 115, where the judge said:

Where given matter becomes the subject of litigation in, and of adjudication by, 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 matter which might have been 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 which the court was actually required by the parties to form an opinion and pronounce 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”.

The doctrine of res judicata which is relevant in both civil and criminal law is based on three maxims:

  1. Nemo debet bis vexari pro una et eadem causa ( no man should be punished twice for the same cause)
  2. Interest reipublicae ut sit finis litium (it is in the interest of the state that there should be an end to a litigation)
  3. Res judicata pro veritate occipitur (a judicial decision must be accepted as correct)

The doctrine is also founded on the aspiration to achieve justice, and equity. It is also to ensure good conscience amongst members of the bench. Once a judgment that determines the issues in the case is delivered by a competent court, then judges who are subsequently confronted by the suit which is identical to or substantially the same as the earlier one, they are obliged to apply the res judicata doctrine to preserve the effect of the first judgment

Res judicata is also meant to help avoid unnecessary waste of resources and the time of court.

For res judicata to be successfully applied, the defendant/respondent must prove that there is

  1. A similarity in the subject of the suit
  2. A similarity in the cause of action in the suit
  3. A similarity in the parties in the suit to those in the earlier suit
  4. A similarity in the designation of the parties involved in the current suit to those in the earlier suit
  5. A final judgment which was delivered
  6. The parties in the earlier suit were given a full and fair opportunity to be heard on the issue

Res judicata is provided for under section 7 of the Civil Procedure Act, Cap 21 laws of Kenya. The same is replicated in section 7 of the Civil Procedure Act, Cap 71 Laws of Uganda. It provides thus:

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 the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court.

Explanation 1. —The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted
prior to it.

Explanation 2 .—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.

Explanation 3.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation 4.—Any matter which might and ought to have been made a ground of defense or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit.

Explanation 5 .—Any relief claimed in a suit, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation 6. —Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in that right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Res judicata acts as a bar to the trial or hearing of a suit or issue in the suit if it has been finally decided in a previous suit between the same parties litigating under the same title in a court of law.

It is also conceived in the interest of the public and requires that litigation must come to an end.

However, res judicata may be avoided only on ground of collusion or fraud.

Court’s time is precious. It must not be wasted. More so, those who approach the throne of justice must do so with utmost reverence and in search of justice. The court process must not be abused or taken for granted. Suits must not be frivolous, they must not be vexatious. So, once a court delivers a judgment, that judgment is final. It may be appealed only to the permitted levels. That suit must not re-appear before the same courts to determine the same issue over the same subject matter. Litigation must always come to an end.


This article appears in our digital law newsletter, The Deuteronomy Vol 7, Issue 4 of July 28th, 2017

To receive The Deuteronomy in real time, click HERE

The law permits sharing.

Leave a Reply

Your email address will not be published. Required fields are marked *