[2009] KEHC 3133 (KLR)
The court found that although there was a previous suit between the parties regarding land parcels, the evidence showed that the parcels—Transmara/Shartuka/943 and Transmara/Shartuka/166—are distinct, with different sizes and registry map sheets. The connection between the two parcels was not established. Therefore,...
Source-derived case information.
- Citation
- [2009] KEHC 3133 (KLR)
- Parties
- Plaintiff: Ampani Lekakeny; Defendant: Ole Chesusua Kiputit; Defendant: Emmanuel Oreu Kitiarap; Defendant: Willson Kitiarap Chesusua; Defendant: Leparan Dicklack Kitiarap; Defendant: Joel Oramat Kitiarap
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 162 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed
- Legal Topics
- Res Judicata, Striking Out Pleadings, Land Ownership Disputes, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ampani Lekakeny
Plaintiff
Ole Chesusua Kiputit
Defendant
Emmanuel Oreu Kitiarap
Defendant
Willson Kitiarap Chesusua
Defendant
Leparan Dicklack Kitiarap
Defendant
Joel Oramat Kitiarap
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata due to a previous suit between the parties.
- 2 Whether the parcels of land in dispute are the same as those in the former suit.
- 3 Whether the plaint should be struck out on grounds of res judicata.
Ratio Decidendi
The court found that although there was a previous suit between the parties regarding land parcels, the evidence showed that the parcels—Transmara/Shartuka/943 and Transmara/Shartuka/166—are distinct, with different sizes and registry map sheets. The connection between the two parcels was not established. Therefore, the matter in issue in the present suit is not the same as that in the former suit. As a result, the doctrine of res judicata does not apply, and the application to strike out the plaint on that ground must fail.
Court Disposition
application dismissed
Orders
- The defendants' application dated 13th February, 2009 is dismissed.
- The plaintiff shall have costs of the application.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 162 of 2008
AMPANI LEKAKENY……...………………….PLAINTIFF
VERSUS
OLE CHESUSUA KIPUTIT
EMMANUEL OREU KITIARAP
WILLSON KITIARAP CHESUSUA
LEPARAN DICKLACK KITIARAP
JOEL ORAMAT KITIARAP……...……….DEFENDANTS
RULING
The defendants’ application dated 13th February, 2009 seeks to strike out the plaint dated 19th November, 2008 on the grounds that:
(i)The issues raised in the plaint have been directly and substantially in issue in a former suit namely KISII HCCC.NO.85 OF 2005 KIPTIT OLE CHESUSUA VS AMPANI LEKANENY.
(ii)The former suit has been heard and finalized by this court.
(iii)The plaintiff herein preferred an appeal to the court of Appeal in the former suit.
(iv)This suit is therefore res judicata.
In Kisii HCCC. No. 85 of 2005 (hereinafter referred to as “the former suit”), Kiputit Ole Chosusua, now the first defendant in this case, claimed that he was the registered owner of a parcel of land known as Transmara/Shartuka/166, hereinafter after referred to as “ the suit land”. He claimed that the defendant had invaded the same and prayed for an eviction order against the defendant.
The defendant filed a statement of defence and denied the plaintiff’s claim. He stated that the plaintiff had been the registered proprietor of the suit land which was a portion of his (the defendant) land registered as Transmara/Shartuka/943. In paragraph 8 of the defence it was pleaded that:
“8. Consequently the defendant denies that he has trespassed upon and is committing any unlawful acts on the piece of land known as Title No. Transmara /Shartuka /943otherwise known asTransmara /Shartuka /166”.
However, for some reasons the statement of defence was struck out. The allegation that the aforesaid two parcels of land are one and the same was not established.
In the former suit, it was established that the first defendant is the registered proprietor of Transmara Shartuka/166 and an eviction order was issued against the plaintiff herein. The plaintiff in this case claims to be the registered proprietor of land known as Transmara/Shartuka/943.
Prima facie, there is evidence to show that these are two different parcels of lands. Transmara/Shartuka/943 measures 22. 15 Hectares and is in Registry map sheet No.2
On the other hand, land parcel No. Transmara Shartuka/166 measures 20. 64 Hectares and is found in Registry map sheet No. 1. However, the registers in respect of the two parcels of land were opened on the same date.
The connection between the two parcels of land, if at all, has not been established.
Section 7 of the Civil procedure Act defines the concept of res judicata. In UHURU HIGHWAY DEVELOPMENT LTD VS CENTRAL BANK OF KENYA & OTHERS Civil Appeal No.36 of 1996, the main ingredients of res judicata were set out as follows:
(a) There must be a previous suit in which the matter was in issue.
(b) The parties in the former suit must be the same or litigating under the same title as the parties in which the plea is raised.
(c) The matter in issue must have been heard by a competent court.
(d) The issue must have been raised once again in a fresh suit.
From the foregoing, it cannot be said that this suit is res judicata in view of the decision in Kisii HCCC. NO. 85 OF 2005. Consequently, I dismiss the defendant’s application dated 13th February, 2009. The plaintiff shall have costs of the application.
DATED, SIGNED AND DELIVERED at Kisii this 16th day of June, 2009
D.MUSINGA.
JUDGE.