[2015] KEELC 97 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 52 OF 2011

IN THE MATTER OF LAND PARCEL NO. 8915/2 AND 2187 SITUATED IN TRANS NZOIA DISTRICT AND SECTION 28 OF THE LIMITATION OF ACTIONS ACT CHAPTER 22 LAWS OF KENYA

BETWEEN

1. ABDUL MUTHEE MULAMA

2. ERNEST SIKUKU ........................................ PLAINTIFFS

(SUING ON BEHALF OF THEMSELVES AND ON BEHALF OF MEMBERS OF PEMBENI SQUATTERS SELF HELP GROUP PURSUANT TO LEAVE OBTAINED ON 23RD MARCH, 2009 IN HCC.MISC. CIVIL APPL. NO. 1 OF 2009 KITALE)

VERSUS

EGLYNE CHEPCHIRCHIR CHOGE.................1STDEFENDANT

BENJAMIN KICHWEN..................................2ND DEFENDANT

CHRISTIAN CHOGE.....................................3RD DEFENDANT

JOSEPH ANG'ANG'A.....................................4TH DEFENDANT

R U L I N G

This is a ruling in respect of a Preliminary Objection by the defendant dated and filed in court on 22/6/2015. The defendant is contending that the plaintiffs suit is res judicata. Before I go on into the submissions on this point, I must point out that there has been a high rate of change of advocates acting for the parties herein especially on the part of the plaintiffs. The plaintiffs have changed lawyers nine (9) times. The defendant has changed lawyers three (3) times. This has affected this case especially regarding the present preliminary objection.

A look at the record in this file shows that the defendant in this case filed an application dated 11/5/2009 in which he sought to have this suit struck out for being res judicata among other grounds. The plaintiffs had earlier on filed an application dated 20/4/2009 in which they sought leave to amend the plaint and for injunctive orders. On 12/5/2009, the counsel for the parties appeared before Justice Chitembwe when they indicated that there were two applications pending; that of 20/4/2009 and that of 11/5/2009. Justice Chetembwe then gave directions that both applications were to be heard on 23/6/2009 with the application of 11/5/2009 being the first one followed by the one of 20/4/2009.

On 23/6/2009, the two applications were argued before Justice Chetembwe who set the ruling date for 1/10/2009. It appears that the ruling was not delivered on 1/10/2009 as had been fixed but the record shows that the same was delivered on 15/10/2009. That ruling must have been a typewritten ruling because there is no handwritten ruling of the same in the court file. The typewritten ruling is not in the court file.

There is every indication from the court file that the defendant's application was not allowed. This is because the parties continued to prepare the case for hearing. On 13/7/2011 this case was consolidated with HCCC No. 89 of 2009 (OS). Had the defendant's application of 11/5/2005 been allowed, then there would have been no need to proceed further as the suit will have been struck out. On the other hand the application by the plaintiffs dated 20/4/2009 must have been either allowed in full or in part. This is because there was amendment of plaint after the ruling delivered on 25/10/2009 and there was also an amended defence and reply to a amended defence. All these amendments would not have been done if the application of 20/4/2009 was not allowed.

The filing of a second preliminary objection by the defendant has been occassioned by change of advocates who did not bother to look at the record clearly or chose to have a second shot, their earlier preliminary objection having been rejected. It therefore follows that this second preliminary objection by the defendant is not only an abuse of the process of court but it is in itself res judicata so to speak, the same having been raised and decided by Justice Chetembwe. This is enough to dispose of this preliminary objection but I will briefly state why this preliminary objection would have been dismissed even if it had not been decided on before.

In 1988 a group of 350 individuals who formed a co-operative society called Sirikwa Mumbai Multipurpose Co-operative Society brought a suit against Simon Kiptum Arap Choge (now deceased) seeking among other reliefs that the defendant was holding some parcels of land in trust for them and that they had acquired the same parcels by way of adverse possession. The group filed Kakamega HCCC No. 4357 of 1988. The deceased brought an application under the then Order 6 Rule 13 1(a) of Civil Procedure Rules seeking to strike out the plaintiffs suit. The application was heard by Justice Akiwumi (as he then was) who dismissed the same on 22/5/1989. In his ruling Justice Akiwumi also set aside an ex-parte injunction which had been given in favour of the plaintiffs by Justice Rauf. The plaintiffs appealed against Justice Akiwumi's order setting aside the ex-parte injunction which had been given by Justice Rauf. The defendant also cross-appealed against the judge's refusal to strike out the plaintiffs suit.

The Judges of Appeal found that the plaintiffs claim consisted of two parts which were brought in one. One part was a claim for adverse possession and the other was a claim based on invitation to purchase as well as claim that the defendant was holding the suit lands in trust for them. The order of Justice Akiwumi declining to strike out the plaintiffs suit was set aside and replaced with an order striking out the plaintiffs suit.

A look at the judgment of the Court of Appeal shows that the plaintiffs claim for adverse possession was dismissed because it was brought by way of plaint when it ought to have been brought by originating summons. The plaintiffs had also not annexed a certified copy of the extract of title as required. The other limb of the plaintiffs claim was dismissed partly for not complying with the requirements pertaining to representative suits and partly because it had not disclosed a reasonable cause of action.

It is therefore clear that the case was not decided on merits. It was lost because of procedural technicalities. It is therefore clear that the same was not fully heard and determined as to call in the doctrine of res judicata. I therefore find that the preliminary objection lacks merit. The same is hereby dismissed with costs to the plaintiffs.

It is so ordered.

Dated, signed and delivered at Kitale on this 19th day of October, 2015.

E. OBAGA

JUDGE

In the presence of Mr. Weche for Plaintiffs

Court Assistant – Winnie.

E. OBAGA

JUDGE

19/10/15