[2014] KEHC 7472 (KLR)
The court found that the orders sought in the current suit were identical to those previously determined by the Kanduyi Land Disputes Tribunal and the subordinate courts. The applicant had already litigated the same subject matter, and the tribunal's award had not been set aside or varied. The pending appeal further...
Source-derived case information.
- Citation
- [2014] KEHC 7472 (KLR)
- Parties
- Plaintiff: Alice Chepkemoi Ngeiywo; Defendant: Longinus Nganga Ifumbi; Defendant: Fredrick P. Wekesa Bukoma
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 291 of 2013
- Procedural Posture
- Land Case / Ruling on Preliminary Objection (res Judicata)
- Outcome
- suit struck out as res judicata and abuse of process
- Judges
- AA Omollo
- Legal Topics
- Res Judicata, Land Disputes Tribunal Awards, Abuse of Court Process, Survey and Subdivision Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Chepkemoi Ngeiywo
Plaintiff
Longinus Nganga Ifumbi
Defendant
Fredrick P. Wekesa Bukoma
Defendant
Procedural Posture
Land Case / Ruling on Preliminary Objection (res Judicata)
Legal Issues
- 1 Whether the present suit is res judicata in light of previous proceedings involving the same parties and subject matter.
- 2 Whether the orders sought in the current suit are substantially similar to those previously determined by the Kanduyi Land Disputes Tribunal and subordinate courts.
- 3 Whether the continued litigation amounts to an abuse of the court process.
Ratio Decidendi
The court found that the orders sought in the current suit were identical to those previously determined by the Kanduyi Land Disputes Tribunal and the subordinate courts. The applicant had already litigated the same subject matter, and the tribunal's award had not been set aside or varied. The pending appeal further confirmed that the matter was still before the courts. The court concluded that the suit was res judicata and constituted an abuse of the court process. Consequently, the application and the entire suit were struck out, and costs were awarded to the 1st defendant.
Court Disposition
suit struck out as res judicata and abuse of process
Orders
- The application dated 9th April 2014 and the plaint are struck out as res judicata.
- The entire suit is struck out as an abuse of the court process.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 291 OF 2013
ALICE CHEPKEMOI NGEIYWO …................................................PLAINTIFF
VERSUS
LONGINUS NGANGA IFUMBI……………....................……….1st DEFENDANT
FREDRICK P. WEKESA BUKOMA ..................................... 2nd DEFENDANT
RULING
1. The applicant sued the two defendants in her plaint dated 25th October 2013. She also filed along with the plaint a notice of motion under certificate of urgency.. In the motion, shesought for an order from this court to compel the district land registrar and surveyor Bungoma to make a site visit to LAND PARCEL NosE.BUKUSU/N.SANG'ALO/1921,E.BUKUSU/N.SANG'ALO/1922,and E.BUKUSU/N.SANG'ALO/1923 with a view of ascertaining individual acreages on paper and on the ground and to have any extra portions pertaining LAND PARCEL E. BUKUSU/N.SANG'ALO/1922, and 1923 sub-divided and transferred to her.
2. When the application came for interpartes hearing, Mr. Murunga advocate raised a point of law that this suit is res judicata and ought to be dismissed with costs. The summary of Mr. Murunga's objection is that the applicant had filed previously similar suits regarding the same subject matter which had been heard and determined or is pending. He annexed proceedings of Kanduyi Land Disputes Tribunal case no. 26 of 1998 and copies of notice of motion in Bungoma CMCC land case no. 25 of 2001 in support of his submissions.
3. He also annexed a copy of filed memorandum of appeal in Bungoma HC Civ. Appeal no. 27 of 2008. He submitted that in all the suits, the matter in dispute was similar to the present claim. That in executing the award of the tribunal, the District Land Surveyor did visit the three disputed parcels of land nos E.BUKUSU/N.SANG'ALO/1922, 1923 and 1921 and made a report. He annexed a copy of that report and submitted that the applicant has never filed an appeal against that report which was made available to her. Mr Murunga advocate has informed the court that the applicant is aware the 2nd defendant is deceased yet she has filed a claim against him. Inresponse, the applicant admitted filing the dispute before the Kanduyi Land Disputes Tribunal in 1998 and the application in 2008 but denied she filed the pending appeal. She urged the court to grant her order for re-survey of the land.
4. I have perused the pleadings filed. In the plaint, the applicant has sought for an order compelling the District Land Registrar and Surveyor to visit E. BUKUSU/N. SANG'ALO/1921, 1922 and 1923 to ascertain individual acreages on the ground and to have any extra portions on L.R. 1922 and 1923 sub-divided and transferred to her (see paragraph 9 of the plaint). The tribunal in their award dated 20. 2.2001 found thus
“The panel examined the facts and resolved that the buyers bought from James Kibusia Ndiga properly and recommended that the claimant brings in special survey to resurvey the land so that any portion over the land bought should go back to the claimant. Thus Longino – 3 acres, Bukoma 3 ½ acres. Each party to bear their costs.
5. In the notice of motion filed in 2008, prayer one therein sought similar orders as those granted by the Kanduyi Land Disputes Tribunal. This application was dismissed on 3rd June 2008 because the trial court held the view the matter in dispute had already been determined. From the copy of the memo of appeal annexed, it is an appeal against this ruling of the Chief Magistrate's court. In the memo on record, the applicant is named as the appellant and the defendants as respondents. This appeal is still pending. It is quite obvious that either the applicant does not understand the legal process or has chosen to adopt the title of a vexations litigant. This suit is no doubt res judicata as the orders sought herein are similar to the award of Kanduyi Land Disputes Tribunal on 20. 2.2001 and which orders have not been set aside or varied. The Kanduyi LDT reached its decision having heard all the parties to the dispuite. Consequently, I find the application dated 9th April 2014 together with the plaint filed is res judicata. The entire suit be and is hereby ordered struck out as being res judicata and an abuse of the court process. The 1st defendant is awarded the cost of the application and the suit.
DATED, SIGNED and delivered in Bungoma on 10th of July 2014
A. OMOLLO
JUDGE