[2024] KEELC 6289 (KLR)

Archdiocese of Nyeri Registered Trustees v Njeru & 3 others (Environment & Land Case 4 of 2023) [2024] KEELC 6289 (KLR) (30 September 2024) (Ruling)

Neutral citation: [2024] KEELC 6289 (KLR)

Republic of Kenya

In the Environment and Land Court at Kerugoya

Environment & Land Case 4 of 2023

JM Mutungi, J

September 30, 2024

Between

Archdiocese of Nyeri Registered Trustees

Plaintiff

and

Zephania Kariuki Njeru

1st Defendant

Lawrence Kamau Mugera

2nd Defendant

Kenya Indusrial Estate Ltd

3rd Defendant

County Land Registrar Kirinyaga

4th Defendant

Ruling

1. The Plaintiff herein instituted this suit vide a Plaint dated 26th July 2023 filed under a certificate of urgency, seeking the following orders;1. A declaration that the suit property Mwea/Tembere/B/136/167 (mother title) and the resultant parcels Mwea/Tembere/B/3796,3797,3798, 3799, 3800,3801,3802 and 3803 belongs to the Plaintiff.2. An order for the cancellation of the title that was issued to the 1st and 2nd Defendants in respect of the suit property Mwea/Tembere/B/136/167 (mother title) and the resultant parcels Mwea/Tembere/B/3796,3797,3798, 3799, 3800,3801,3802 and 3803 and for the issuance of a new title for the said parcel of land in favour of the Plaintiff.3. An order for eviction of the Defendants from the suit property, to wit, parcel Mwea/Tembere/B/136/167 (mother title) and the resultant parcels Mwea/Tembere/B/3796,3797,3798,3799,3800,3801,3802 and 3803. 4.A permanent injunction restraining the Defendants jointly and severally by themselves, their agents and or servants from trespassing, selling, developing, building any structures or houses, disposing, and transferring or in any manner whatsoever interfering with the Plaintiff’s quiet and peaceful possession of parcel Mwea/Tembere/B/136/167 (mother title) and the resultant parcels Mwea/Tembere/B/3796,3797,3798,3799,3800,3801, 3802 and 3803. 5.Costs of the suit and interest.6. Such other relief that this Honourable court may deem fit to grant.

2. The 1st and 2nd Defendants filed a Replying Affidavit dated 27th October 2023 and inter alia pleaded that the Plaintiff/Applicant suit was res judicata by reason of Nairobi HCCC No. 1881 of 1996, where the same subject matter was in issue and was determined. The Defendant consequently filed a Notice of Preliminary Objection dated 24th October 2023 setting out the following grounds:-1. The suit filed herein is res judicata and the same issues were compromised in Nairobi High Court Case No. 1881 of 1996 between the Diocese of Nyeri Trustees(Registered) vs Kenya Industrial Estates Ltd and Zephaniah Kariuki Njeru and Lawrence Kamau Mugera (as 3rd parties) and dismissed on 1st July 2015. 2.That the Plaintiff does not disclose that there is pending suit between itself and the Defendants being ELCLC Case No. E001 of 2023 Kerugoya High Court and the existence of the Nairobi HCCC No. 1881 of 1996 aforesaid that was dismissed on 1st July 2015 which provision is mandatory in law.3. The suit herein therefore is an abuse of the court process.

3. The Court, on 3rd November 2023, directed the parties to canvass the Preliminary Objection through written submissions, and parties filed their submissions.

4. In support of the Preliminary Objection, the 1st and 2nd Defendants argued that the Plaintiff had filed a Plaint in HCCC No 1881 of 1996 (Nairobi) dated 10th July 1996 against the 3rd Defendant. In the suit, the Plaintiff was seeking the rescission of the sale of the suit property and a refund of Kshs. 7,636,570/- plus interest, which represented the amount for which the 3rd Defendant had sold the suit land. Additionally, the Plaintiff was seeking general damages, costs, and interest at court rates. The plaintiff argued that the suit was dismissed for want of prosecution. Consequently, the 1st and 2nd Defendants claimed that this suit is res judicata by dint of Section 7 of the Civil Procedure Act, Laws of Kenya. The 1st and 2nd Defendant’s Counsel also argued that the Plaintiff's failure to disclose the existence of HCCC No. 1881 of 1996 in their plaint made the current suit incompetent as it would significantly impact this court's decision-making process. They referenced the Case of Mumira v. Attorney General (Constitutional Petition E007 of 2020) (2022) KEHC.

5. The Plaintiff confirmed in its submissions that it had previously sued the 3rd Defendant in HCCC No. 1881 of 1996 and that case was dismissed for want of prosecution. The Plaintiff argued that the current suit involves the determination of the ownership of the land in question and not the cancellation of the sale agreement between Plaintiff and the 3rd Defendant as was the case in HCCC No. 1881 of 1996. The Plaintiff claimed that the two cases were not similar, as the 1st and 2nd Defendant argued; therefore, the case was not res judicata. The Plaintiff also argued that this Court had jurisdiction to hear and determine this suit. The Plaintiff further argued that the case in HCCC No. 1881 of 1996 was dismissed due to lack of prosecution and was not heard on its merits. Consequently, it cannot be considered a valid basis for a preliminary objection on the grounds of res judicata.

6. The 3rd Defendant filed its written submissions on 29th February 2024, contending that the Plaintiff’s suit is not res judicata as alleged. According to the 3rd Defendant, the issues at hand have never been conclusively determined by a competent court before. It submitted that the preliminary objection lacks merits and as such should be dismissed with costs.

7. The Preliminary Objection taken by the 1st and 2nd Defendant raises a point of law and I am in the premises satisfied that the Preliminary Objection satisfied the threshold of what qualifies to be raised as a valid Preliminary Objection. See the Case of Mukhisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696.

8. In the present matter, the 1st and 2nd Defendant have based their Preliminary Objection on the argument that the Plaintiff’s claim has already been heard and decided in HCCC No. 1881 of 1996. They assert that HCCC No. 1881 of 1996 involved the same subject matter and parties, rendering this suit Res Judicata. The determination of whether the Plaintiff’s suit is Res Judicata is crucial to establishing this Court's jurisdiction to hear the case. If the suit is Res Judicata, then the Court lacks the jurisdiction to entertain the same. If the Court were to proceed to hear and adjudicate the suit when it lacked jurisdiction, its decision would be null and void.

9. The substantive law on Res Judicata is codified in Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya which provides that:“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”.

10. The Black’s law Dictionary 10th edition defines “res judicata” as“An issue that has been definitely settled by Judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”

11. Steve Ouma, in A Commentary on the Civil Procedure Act Cap 21, Second Edition at page 38 has explained Section 7 to mean:“Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been matter directly and substantially in issue in such suit.”

12. The principle of res judicata has two main rationales. First, it seeks to avoid the hardship that individuals would face by having to litigate the same cause multiple times. Second, it serves the public interest by promoting the finality of litigation. Essentially, the doctrine assumes that every suit is grounded on a cause of action. Therefore, if a party tries to initiate a suit based on the same cause of action as a previous suit, the new suit cannot proceed.

13. In the Case of Kennedy Mokua Ongiri Versus John Nyasende Mosloma & Florence Nyamoita Nyasende (2022) eKLR, the Court held that:-“…in order therefore to decide as to whether an issue in a subsequent Application is res judicata, a Court of law should always look at the decision claimed to have settled the issues in question and the entire application and the instant application to ascertain;1. what issues were really determined in the previous application;2. whether they are the same in the subsequent application and were covered by the decision.3. whether the parties are the same or are litigating under the same title and that the previous application was determined by a Court of competent jurisdiction.

14. In the Case of Njangu Versus Wambugu and another Nairobi HCCC No. 2340 of 1991 (Unreported), Kuloba J, as he then was, stated that:‘If parties were allowed to go on litigating forever over 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 the use of the doctrine of res judicata……

15. These principles were restated by Hon. Justice Odunga in Republic – Vs – Attorney General and Another Exparte James Alfred Koroso [2013] eKLR, where he expressed himself thus on the issue of access to Justice: -“Access to Justice cannot be said to have been ensured when persons in whose favour Judgments have been decreed by Courts or Tribunals of competent jurisdiction cannot enjoy the fruits of their judgments due to road blocks placed on their paths by actions or inactions of others.”

16. The Learned Judge in the Case of Kennedy Mokua Ongiri (Supra) further held that“…Article 159 (2) (b) of the Constitution mandates that justice ought not to be delayed. To take a successful litigant into a circular frolic expedition, when sufficient concessions have been availed to the Applicant to settle Decree would be to turn the legal process into a theatrical absurdity.”

17. I have carefully reviewed the Plaint, the Replying Affidavits, and the arguments presented by the Counsel for both parties. It is undisputed that the Plaintiff filed Nairobi HCCC No. 1881 of 1996 against the 3rd Defendant and in the suit before the High Court, the Plaintiff herein claimed against the 3rd Defendant herein the following orders:-1. A declaration that the sale be and is hereby rescinded2. A refund of a sum of Kshs. 7,636,571 plus interest from the date of receipt to the date of full payment at the prevailing commercial rates.3. General damages.4. Costs and interest at court rates.5. Any other or further relief as this Honourable Court may deem fit and just to grant.

18. The case brought before the High Court involved the Plaintiff and the 3rd Defendant and revolved around the same subject matter. HCC No. 1881 of 1996 was dismissed on 25th October 2023 under Order 17 Rule 2 (1) of the Civil Procedure Rules. The crucial question for this Court to answer is whether this current case can be considered Res Judicata. The 1st and 2nd Defendants, despite claiming that the suit is Res Judicata, were not involved in the previous case (HCC No. 1881 of 1996). The cause of action in the earlier High Court case stemmed from a breach of contract, while the present case revolves around ownership of the property claimed by all parties except the 4th Defendant. The cause of action in the earlier suit was distinctly different from the cause of action in the instant suit. The issues for determination in the present suit are not similar to the issues in the earlier suit and hence this case cannot be deemed Res Judicata.

19. The 1st and 2nd Defendant similarly raised the issue of subjudice. Section 6 of the Civil Procedure Act Cap 21 Laws of Kenya provides as follows:-“6. No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.”

20. In their defence, the 1st and 2nd Defendants pleaded they had filed against the Plaintiff Kerugoya ELC No. E001 of 2023 seeking removal of cautions that the Plaintiff had registered against the suit property which the Plaintiff made no disclosure of when filing the instant suit. Although the 1st and 2nd Defendants stated that the said suit was pending and ongoing, there was no indication that the Plaintiff had been served and/or were aware of the suit. The copy of the Plaint exhibited by the 1st and 2nd Defendants does not bear a Court stamp or any seal of the Court. At any rate the causes of action are distinctly different as in ELC No. E001 of 2023 the 1st and 2nd Defendants seek removal of cautions while in the present suit the Plaintiffs seek a declaration that they are the legitimate owners of the suit property, cancellation of titles held by the 1st and 2nd Defendants and their eviction from the land.

21. In the premises, the doctrine of subjudice would be inapplicable as the two suits do not relate to the same or similar issues.

22. For the foregoing reasons I find and hold that the Preliminary Objection lacks any merit and is dismissed with costs to the Plaintiff.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY of SEPTEMBER 2024. J. M. MUTUNGIELC - JUDGE