[2021] KEELC 4574 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

ELCC No. 13 OF 2020

ALICE ACHIENG OROMO.............................................................1ST PLAINTIFF

AINEAH ALOO ANIKA..................................................................2ND PLAINTIFF

VERSUS

NAKURU DISTRICT LAND REGISTRAR....................................1ST DEFENDANT

MICHAEL NDWIGA THADAYO.................................................2ND DEFENDANT

MUSA CHEPYEGON CHEPTOO...............................................3RD DEFENDANT

JOHN KAMAU MWANGI...........................................................4TH DEFENDANT

RULING

1. This ruling is in respect of the 3rd Defendant’s Notice of Motion dated 16th March 2020. The following orders are sought in the application:

1. THAT this honorable court be pleased to strike out the suit filed against the Defendants as the same is res judicata.

2. THAT the application is filed contrary to section 7 of the Civil Procedure Act, 2010 and therefore the Honorable Court lacks jurisdiction to grant the orders prayed for.

3. THAT in any case the suit is bad in law, vexatious and amounts to an abuse of the court process.

4. THAT the cost of this application be awarded to the Defendants/Applicants against the Plaintiffs/Respondents.

2. The application is anchored on a supporting affidavit and a supplementary affidavit, both sworn by the 3rd defendant. He deposed that the orders sought in respect to the suit property herein are similar to those sought in Nakuru ELC No. 73 of 2014 and that it raises the same issues. He also stated that Nakuru ELC No. 73 of 2014 was conclusively determined on 30th March 2017 thereby rendering this suit res judicata.

3. The plaintiffs also responded through a replying affidavit sworn by the 1st plaintiff. She deposed that on the same day that Nakuru ELC No. 73 of 2014 was dismissed, she filed an application dated 30th March 2017 seeking to set aside the order and reinstate the suit. She added that the application could not be prosecuted immediately and that the matter was transferred to the subordinate court for hearing and determination. That the applicant later entered appearance in the subordinate court on 26th February 2020 and the suit is still alive and not res judicata as the application dated 30th March 2017 is still pending.

4. Although the 4th defendant did not file any response to the application, his advocate informed the court that the 4th defendant does not oppose the application.

5. The application was canvassed through written submissions. The applicant and the plaintiffs duly filed and exchanged submissions. I have considered the application, the affidavits and the submissions.

6. The doctrine of res judicata has been codified at Section 7of the Civil Procedure Act as follows:

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.

7. For res judicata to apply in a particular matter, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court and the issue is raised once again in the new suit. SeeJohn Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR. Res judicata operates as a complete estoppel against any suit that runs afoul of it. SeeMaithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others [2018] eKLR.

8. There is no dispute that Nakuru ELC No. 73 of 2014 was filed. A perusal of the plaint in the said matter shows that the plaintiffs herein are the plaintiffs therein and the 3rd defendant herein is the sole defendant therein. Just like in this suit, the subject matter of the said suit is the parcel of land known as Nakuru Municipality Block 23/88. There are allegations that the title was obtained fraudulently and judgment is sought inter alia for cancellation of the title. There is equally no dispute that Nakuru ELC No. 73 of 2014 was dismissed for want of prosecution on 30th March 2017. A perusal of the record reveals that indeed, the plaintiffs filed an application dated 30th March 2017 seeking to set aside the order of dismissal and reinstate the suit. The record similarly confirms that Nakuru ELC No. 73 of 2014 was transferred to the Chief Magistrate’s Court Nakuru for hearing and determination on 25th May 2018 at the request of the plaintiffs. At the date of transfer, the application for setting aside and reinstatement had not been heard. It is thus possible that the application is still pending as contended by the plaintiffs.

9. A key requirement of res judicata is that the recurrent issue must have been heard and determined. The plaintiffs have laid emphasis on that aspect in their submissions. In view of the pending application for setting aside and reinstatement, there is as yet no finality as regards the issues raised in Nakuru ELC No. 73 of 2014. This suit is therefore not res judicata. If, however there was no pending application for reinstatement, the dismissal for want of prosecution would operate as a final determination and res judicata would apply. The Court of Appeal clarified as much when it stated inNjue Ngai v Ephantus Njiru Ngai & another [2016] eKLR as follows:

18. Another issue may arise as to whether a dismissal of a suit for non-attendance of the plaintiff or for want of prosecution, amounts to a judgment in that suit. The predecessor of this Court answered that issue in the affirmative when considering the dismissal of a suit for failure by the plaintiff to attend court in the case of Peter Ngome vs Plantex Company Limited [1983] eKLR stating:

“Rule 4(1) does not say “judgment shall be entered for the defendant or against the plaintiff.” It uses the word “dismissed.” The Civil Procedure Act does not define the word “judgment”. According to Jowitt’s Dictionary of English Law 2nd ed p 1025:

“Judgment is a judicial determination; the decision of a court; the decision or sentence of a court on the main question in a proceeding or/one of the questions, if there are several.”

Mulla’s Indian Civil Procedure Code, 13th Ed Vol 1 p 798 says: “Judgment” means the statement given by the judge on the grounds of a decree or order;” “Judgment - in England, the word judgment is generally used in the same sense as decree in this code.”

In my view, a judgment is a judicial determination or decision of a court on the main question(s) in a proceeding and includes a dismissal of the proceedings or a suit under Rule 4(1) of Order IXB or under any other provision of law. A dismissal of a suit, under Rule 4(1), is a judgment for the defendant against the plaintiff. An application under Rule 3 of Order IXB includes application to set aside a dismissal. This must be so because, when neither party attends court on the day fixed for hearing, after the suit has been called on for hearing outside the court, the court may dismiss the suit, and, in that event, either party may apply under Rule 8 to have the dismissal set aside or the plaintiff may bring a fresh suit subject to any law of limitation of actions: See Rule 7(1) of Order IXB. This, I think, clearly shows that Rule 7(2) was intended to bar a plaintiff whose suit has been dismissed under Rule 4(1), only from bringing a fresh suit. That provision does not bar such a plaintiff from applying for the dismissal to be set aside under Rule 8. ”

…

21. Now, we have seen that a dismissal for want of prosecution was as good as a final judgment in the appeal unless a successful application for setting aside was filed. …

10. The applicant has also contended that the suit being bad in law, vexatious and amounts to abuse of the court process. After analyzing various comparative decisions, the Court of Appeal addressed the issue of abuse of court process in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others[2009] eKLR as follows:

The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it...The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice. Examples of the abuse of the judicial process are: -

i. Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.

ii Instituting different actions between the same parties simultaneously in different courts even though on different grounds.

iii. Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a respondent’s notice. …

11. There is no dispute that the plaintiffs filed Nakuru ELC No. 73 of 2014 against the 3rd defendant herein. As noted earlier, the said suit was dismissed for want of prosecution on 30th March 2017 and an application for reinstatement is pending. This new suit was filed on 25th February 2020, almost some 3 years after the dismissal. The plaintiffs themselves acknowledge at paragraph 17 of the plaint herein that Nakuru ELC No. 73 of 2014 exists and that it became Nakuru CMELC No. 132 of 2018 upon transfer to the subordinate court. The plaintiffs cannot maintain two suits in court over the same subject matter. I agree with the applicant that this suit is an abuse of court process.

12. It is not surprising that the plaintiffs have not prosecuted their application for reinstatement so far. They will need to satisfy the court that there are valid reasons to reinstate the dismissed suit. They cannot sidestep the issue by filing another case. If they think that the 1st, 2nd and 4th defendants herein should be in the litigation, they can seek to amend the plaint and join them if and when they obtain reinstatement.

13. In view of the foregoing, I hereby strike out this suit for being an abuse of the court process. Costs of the application and the suit are awarded to the 3rd and 4th defendants.

Dated, signed and delivered at Nakuru this 28th day of January 2021.

D. O. OHUNGO

JUDGE

In the presence of:

No appearance for the plaintiffs

No appearance for the 1st defendant

No appearance for the 2nd defendant

Ms Wairimu for the 3rd defendant

Ms Wairimu holding brief for Mr Chege for the 4th defendant

Court Assistants: B. Jelimo & J. Lotkomoi