[2019] KEELC 4786 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISUMU

ELC SUIT NO. 83 OF 2012

ARCHDIOCESE OF KISUMU CATHOLIC CHURCH......PLAINTIFF

VERSUS

JOSEPH ORIEYA OWUOR..........................................1ST DEFENDANT

CHRISTINE ODONGO OSELU...................................2ND DEFENDANT

ALFEUS ODONGO OSELU.........................................3RD DEFENDANT

EZEKIEL OKANO OMONDE......................................4TH DEFENDANT

OMONDI OKANO..........................................................5TH DEFENDANT

JOSEPH AWITI OTULA...............................................6TH DEFENDANT

ENOKA ONYANGO AMONDE...................................7TH DEFENDANT

TOM ONG’ELE KABITA.............................................8TH DEFENDANT

RULING

1. Archidiocese of Kisumu Catholic Church, the Plaintiff, filed the notice of motion dated the 31st January 2107 seeking for an order of temporary injunction restraining Joseph Oyieya Owuor, Chrispine Odongo Oselu, Alfeus Odongo Oselu, Ezekiel Okano Amonde, Omondi Okano, Joseph Awiti Otula, Enoka Onyango Amonde and Tom Ongele Kabita, the Defendants, by themselves, agents or servants from interfering with, trespassing and or disposing off any part of South Nyakach/East Koguta/1777, 1708, 1700, 1712, 1696, 1698, 1718, 1720, 1704, 1706, 1714, 1716, 1710, 1702 and 558 pending the hearing and determination of this suit. The application is based on the seven (7) grounds on its face and is supported by the affidavit sworn by Brother Teles O. Odete, the Plaintiff’s administration coordinator, on the 24th January 2017.

2. The application is opposed by the Defendants through the grounds of opposition dated the 1st November 2017.

3. The application came up for hearing on the 24th October 2017 when among others, Counsel for the parties agreed to file and exchange written submissions. The Counsel for the Plaintiff filed their submissions dated the 16th March 2018. The matter then came up for mention on the 8th October 2018 when the Counsel for the Defendants informed the court that they will not file written submissions but will rely on their filed grounds of opposition.

4. The issues for determination by the court are as follows;

a) Whether the issues in the application are res judicata.

b) Whether the Plaintiff has established a prima facie case with a reasonable probability of success for temporary injunction to issue at this interlocutory stage.

c) Who pays the costs of the application.

5. The Court has carefully considered the grounds on the motion and of opposition, the supporting affidavit, the Plaintiff’s written submissions, the pleadings and come to the following determinations;

a) This suit was commenced through the plaint dated the 11th October 2012 by St: Leo Sigoti Agricultural Nutrition College (Complex) filed on the 30th October 2012. The Plaintiff was later substituted by Archidiocese of Kisumu – Catholic Church following the application filed on the 19th February 2014 and allowed on the 28th April 2016. That from the plaint, specifically paragraph 3, the suit is over land Parcels South Nyakach/East Koguta/539, 538, 540, 543, 544, 545, 546, 548, 550, 551, 552, 553, 537, 558 and 557. The Plaintiff avers that it acquired the said parcels and commenced occupation around 1967 and was in the process of electing a perimeter fence when the Defendants interfered. That from the copies of the certificates of official searches provided by the Defendants through their list of documents dated the 22nd November , and the replying affidavit sworn by Chrispine Onyango Odongo in reply to an earlier motion dated 11th October 2012, plus the copies of the green card attached to the plaintiff’s supplementary list of documents dated 7th February 2017, none of the said parcels has ever been registered in the name of the current or former Plaintiff.

b) That in the current notice of motion, the Plaintiff seeks for temporary injunction in respect of fourteen (14) parcels of land that are not mentioned in the plaint except one, that is South Nyakach/East Koguta/558. That even though the fourteen (14) parcels of land as described in the motion may have been subdivided from some of the parcels of land in the plaint, the Plaintiff needed to ensure that they are included in the plaint first for the motion to be properly grounded.

c) That if the parcels of land in respect of which the Plaintiff seeks the Defendants to be restrained from are subdivisions from some of the parcels listed in the plaint, then they were obviously the same parcels subject matter of the earlier motion dated 11th October 2012 which was heard on merit and rejected. That the change in their numbers allegedly following subdivisions is just but a cosmetic change in their nature. The parties in the current application are the same and litigating under the same titles as in the earlier application. That the decision on the motion dated 11th October 2012 on the 27th June 2013 was by this court which is also dealing with the current application. That the change in the name of the Plaintiff following the application to substitute is but a cosmetic one. That accordingly the court finds merit in the Defendants’ grounds of opposition that the issues raised in the application, having already been determined by this court in the previous application, makes the current application res judicata. That the elements set out in Section 7 of the Civil Procedure Act Chapter 21 of Laws of Kenya, which the Court of Appeal in Kenya Commercial Bank Limited V Benjoh Amalganated Limited [2017] eKLR held must be present before an issue can be found to be res judicata are clearly apparent in this case. That in addition, the court concurs with the finding of Ringera J, in George W. M. Omondi & Another V National Bank of Kenya Ltd & 2 Others [2001] eKLR where he stated that:-

“…the doctrine of res judicata would apply not only to situations where a specific matter between the same persons litigating in the same capacity has previously been determined by a court of competent jurisdiction but also to situations where either matters which could have been brought in were not brought in or parties who could have been enjoined were not enjoined. Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit. They are bound to bring all their case at once. They are forbidden from litigating in instalments. I wholly agree with the opinion of Kuloba Jin Mwangi Njangu V Meshack Mbogo Wambugu(supra) where he said:- “If litigants were allowed to go on forever re-litigating the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face – lift on every occasion he comes to court, then I do not see what use the doctrine of res judicata plays.”

6. That for the reasons set out above, the court finds no merit in the Plaintiff’s motion dated the 31st January 2017. The motion is therefore dismissed with costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 30TH DAY OF JANUARY 2019

In the presence of:

Plaintiff Absent

Defendants Absent

Counsel Absent

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE