Section 7 of Civil Procedure Act CAP 21: Res judicata
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.
Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before 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 ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such 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 such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Enhance Your Research with Bookmarks and Annotations
Here's how you can use these features:
- To bookmark this page, click the "Bookmark this Page" button below the document title.
- To add an annotation, highlight text in the document and select "Add Annotation" from the toolbar that appears.
- These features are great for organizing your research and keeping track of key information.
- You can view and manage your bookmarks and annotations on your Bookmarks and Annotations page.
- Section 8 - Bar to further suit
Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of that cause of action.
- Section 9 - When foreign judgment not conclusive
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same...
- Section 11 - Court in which suit to be instituted
Every suit shall be instituted in the court of the lowest grade competent to try it, except that where there are more subordinate courts than one with jurisdiction in the same district competent to...
- Section 12 - Suit to be instituted where subject matter situate
Subject to the pecuniary or other limitations prescribed by any law, suits—
(a) for the recovery of immovable property, with or without rent or
profits;
(b) for the partition of immovable...
- Section 13 - Suit for immovable property situate within jurisdiction of different courts
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the...
- Section 14 - Suit for compensation for wrong to the person or movables
Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or...
- Section 15 - Other suits to be instituted where defendant resides or cause of action arises
Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a) the defendant or each of the defendants (where there are more than...
- Section 16 - Objections to jurisdiction
No objection as to the place of suing shall be allowed on appeal unless such objection was taken in the court of first instance and there has been a consequent failure of justice.
- Section 17 - Power to transfer suits which may be instituted in more than one court
Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties, or the court of its own motion,...
- Section 18 - Power of High Court to withdraw and transfer case instituted in subordinate court
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any...
- Section 19 - Institution of suits
Every suit shall be instituted in such manner as may be prescribed by rules.
- Section 20 - Service on defendant
Where a suit has been duly instituted the defendant shall be served in manner prescribed to enter an appearance and answer the claim.
- Section 21 - Service where defendant resides in another district
(1) Any document which is required to be served in connexion with a suit may be sent for service in another district to a court having jurisdiction in that district.
(2) The court to which such...
- Section 22 - Power to order discovery and the like
Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—
(a) make such orders as may be necessary or...
- Section 23 - Summons to witness
Sections 21 and 22 shall apply to summonses to give evidence or to produce documents or other material objects.
- Section 24 - Penalty for default
The court may compel the attendance of any person to whom a summons has been issued under section 22, and for that purpose may—
(a) issue a warrant for his arrest;
(b) attach and sell his...
- Section 25 - Judgment and decree
The court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow:
Provided that it shall not be necessary for the court to hear the case before...
- Section 26 - Interests
(1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from...
- Section 27 - Costs
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion...
- Section 28 - Application to orders
The provisions of this Act relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.
- Section 29 - Definition of “court which passed a decree”
The expression “court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, except where the context otherwise requires, include—
(a) where the decree to...
- Section 30 - Court by which decree may be executed
A decree may be executed either by the court which passed it or by the court to which it is sent for execution.
- Section 31 - Transfer of decree
(1) The court which passed a decree may, on the application of the decreeholder, send it for execution to another court—
(a) if the person against whom the decree is passed actually and...
- Section 32 - Result of execution proceedings to be certified
The court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution, or where the former court fails to execute the same the circumstances attending...
- Section 33 - Powers of court in executing transferred decree
(1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself.
(2) All persons disobeying or obstructing the execution of the...
- Section 34 - Questions to be determined by court executing decree
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be...
- Section 36 - Transferee of decree
Every transferee of a decree shall hold the same subject to the equities, if any, which the judgment-debtor might have enforced against the original decreeholder.
- Section 37 - Legal representative
(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of...
- Section 38 - Powers of court to enforce execution
Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—
(a) by delivery of any property specifically...
- Section 39 - Enforcement of decree against legal representative
(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the...
- Section 40 - Arrest and detention
(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall as soon as practicable be brought before the court, and his detention may be in any prison of the...
- Section 41 - Subsistence allowances
The Minister may, by notice in the Gazette, fix scales of monthly allowances payable for the subsistence of a judgment-debtor.
- Section 42 - Detention and release
(1) Every person detained in prison in execution of a decree shall be so detained—
(a) where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period not...
- Section 43 - Release on ground of illness
(1) At any time after a warrant for the arrest of a judgment-debtor has been issued, the court may cancel it on the ground of his serious illness.
(2) Where a judgment-debtor has been arrested, the...
- Section 44 - Property liable to attachment and sale in execution of a decree
(1) All property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is...
- Section 45 - Seizure of property in dwelling-house
(1) No person in executing any process under this Act directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a...
- Section 46 - Property attached in execution of decrees of several courts
(1) Where property not in the custody of a court is under attachment in execution of decrees of more courts than one, the court which shall receive and realize that property and shall determine any...
- Section 47 - Private alienation of property after attachment to be void
Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein, and any payment to the judgmentdebtor of any debt, dividend or other moneys...
- Section 48 - Purchaser’s title
Where immovable property is sold in execution of a decree and the sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not...
- Section 49 - Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff
(1) No suit shall be maintained against any person claiming title under a purchase certified by the court in such manner as may be prescribed on the ground that the purchase was made on behalf of the...
- Section 50 - Distribution of assets
(1) Where assets are held by any court and more persons than one have before the receipt of such assets by such court lodged applications in court for the execution of decrees for the payment of money...
- Section 51 - Resistance to execution
Where the court is satisfied that the holder of a decree for the possession of immovable property, or that the purchaser of immovable property sold in execution of a decree, has been resisted or...
- Section 52 - Power of court to issue commission
Subject to such conditions and limitations as may be prescribed, the court may issue a commission—
(a) to examine any person;
(b) to make a local investigation; (c) to examine or adjust...
- Section 53 - Commission to another court
(1) A commission for the examination of any person may be issued by the High Court to any subordinate court or to any advocate, and by a subordinate court of the first or second class to any other...
- Section 54 - Letter of request
In lieu of issuing a commission, the High Court or a subordinate court with the sanction of the High Court may issue a letter of request to examine a witness residing at any place outside Kenya.
- Section 55 - Commission issued by foreign court
Commissions issued by foreign courts for the examination of persons in Kenya shall be executed and returned in such manner as may be from time to time authorized by the High Court.
- Section 56 - When alien may sue
(1) Alien enemies residing in Kenya with the permission of the President, and alien friends, may sue in the courts of Kenya.
(2) No alien enemy residing in Kenya without such permission, or residing...
- Section 57 - When foreign state may sue
(1) A foreign state may sue in any court of Kenya, provided that state has been recognized by Kenya, and provided the object of the suit is to enforce a private right vested in the head of that state...
- Section 58 - When interpleader suit may be instituted
Where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges...
- Section 59 - Arbitration
All references to arbitration by an order in a suit, and all proceedings thereunder, shall be governed in such manner as may be prescribed by rules.