[2019] KEELC 2465 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC CASE NO. 20 OF 2016 (O.S)

BEATRICE NJOKI KORI..........................................................1ST PLAINTIFF

REGINA WANJIKU KORI........................................................2ND PLAINTIFF

PRISCILA WAMARWA KORI..................................................3RD PLAINTIFF

VERSUS

EDWARD MUNENE.................................................................1ST DEFENDANT

JOSEPHINE WAKUTHII NYAGA.........................................2ND DEFENDANT

REGISTRAR OF LANDS, KIRINYAGA COUNTY.............3RD DEFENDANT

THE HON. ATTORNEY GENERAL......................................4TH DEFENDANT

RULING

BACKGROUND

This ruling emanates from the 1st defendant’s Notice of Preliminary Objection dated 23rd May 2016. The said Notice is premised on the following grounds:

(a) That the Originating Summons dated 17th February 2016 is bad in law, fatally defective and an abuse of the Court process.

(b) That the application is improperly before this Court.

(c) That the Court has no jurisdiction to entertain this matter.

That Notice of Preliminary Objection is opposed by the plaintiff through grounds of opposition dated 27th July 2016.

1ST DEFENDANT’S SUBMISSIONS

The first defendant who is the mover of the said Notice of Preliminary Objection has set out three grounds of his objection as follows:

(a) This Court has no jurisdiction to entertain this suit.

On this ground, the 1st defendant stated that the basis of this suit are proceedings and orders issued by a Court of competent jurisdiction in PMCC No. 137 of 2000 (Embu) being orders issued on 12/1/2000 and 10/8/2008. The final orders of the Court were made on 20/10/2000 wherefore the plaintiffs were evicted from the suit premises on 23/1/2001. Instead of appealing against the orders of the Court, the plaintiff filed a suit in the High Court Nairobi being HCCC No. 11 of 2001. Instead of pursing the newly filed suit, the plaintiff sought and obtained leave to file an appeal out of time against the ruling made on 25/10/2000 in PMCC No. 137 of 2000 (Embu). Again on 25/1/2001, the plaintiffs filed case No. HCCA No. 4 of 2001 (Nairobi). On 5/3/2002, both HCCC No. 11 of 2001 and HCCA No. 4 of 2001 were consolidated and placed before Justice Juma who made the following orders:

(i) HCCC No. 11 of 2001 (NBI) be transferred to Embu High Court.

(ii) PCC No. 137/2000 (Embu) be transferred to High Court (Embu).

(iii) The two files be consolidated upon transfer.

(iv) All parties be at liberty to amend their pleadings.

Upon consolidation of the two files being PMCC No. 137/2000 and HCCC No. 11 of 2001, the same was registered as HCCC No. 9 OF 2004. The defendant moved the Court to dismiss the said case for want of prosecution which was granted on 10/7/2008. On 13/3/2008 ?, the plaintiff yet again filed another case being HCCC No. 34 of 2008 (Embu) and on 25/4/2012, he withdrew the same with costs to the defendant. On 17/2/2016, the plaintiff yet again filed the instant suit which he amended on 11/10/2016. The defendant urged that a simple look at the affidavit in support of the Originating Summons sworn by Beatrice Njoki Kori confirms the summary of the legal journey taken by the plaintiff. The 1st

defendant further stated that this Court is being invited in the most illegal way to review revoke and/or sit on appeal in proceedings that were dealt with by competent Courts of law, both in the lower and the higher Courts. He submitted that the issues in SPMCC No. 137/2000 (Embu) were the same in HCCC No. 11 of 2011 (Nairobi) which upon consolidation and registered as HCCC No. 9 of 2004 was left to lie dormant until the same was dismissed for want of prosecution. There was no appeal or application for review against the order of dismissal. The 1st defendant further stated that the plaintiff has filed several suits seeking orders which were either disallowed and/or the suits dismissed. The plaintiffs now wishes to have those orders revoked un-procedurally without following the laid down legal procedures. It is averred that the plaintiffs have been active participants in all the suits and have also had the benefit of legal representation in all the suits. There is no allegation that the orders they now wish to revoke were made without their knowledge. Having failed to challenge the orders issued by Courts of competent jurisdiction through the legal process, the plaintiffs cannot seek to reverse the same by way of Originating Summons which is not only bad in law but an abuse of the Court process. The 1st defendant urged that the plaintiffs are the daughters of one Samuel Kori Ngaire (deceased) who was the plaintiff in PMCC No. 137/2000 (Embu). In that case, the said Samuel Kori Ngaire had sued the defendants for fraudulently acquiring his land parcel No. BARAGWI/GUAMA/1853 and registering the same in their names. The Court reversed the fraudulent registration and reverted back the land to their father who later sold the same to Edward Mugo, the 1st defendant herein. The plaintiffs were subsequently evicted from the suit land vide PMCC No. 137 of 2000. The 1st defendant got registered as proprietor of the suit land on 28/6/2001. On 30/9/2004, the plaintiffs’ father passed on. The plaintiffs thereafter filed Succession Cause No. 455 of 2015 (Kerugoya) where they jointly became the administrators to the Estate of Samuel Kori Ngaire, their father which enabled them file the instant case. The 1st defendant also stated that the plaintiffs did not comply with Order 4 Rule 4 where it is mandatory to state in what capacity the plaintiffs have instated the suit. Failure to comply with that provision is fatal.

PLAINTIFFS SUBMISSIONS

The plaintiffs through the firm of Musungu & Co. Advocates submitted none of the orders mentioned by the 1st defendant have been attached as evidence that the issues being raised have been determined by a Court of competent jurisdiction. The plaintiffs also averred that their late father did not sell the disputed parcel of land to the defendant and if indeed he sold, then the alleged sale was fraudulent with the express participation of the 1st defendant. It is submitted that to-date the 1st defendant has never provided evidence of purchasing the disputed parcel of land. The plaintiffs submitted that the issue before Court is whether the 1st defendant legally purchased the disputed parcel of land. The plaintiffs submitted that the 1st defendant has never been a party to the numerous Court orders cited by the 1st defendant including the dismissal Court orders issued on 10/7/2007. As such, they submitted that the issue of res-judicata does not apply. It is further submitted that even if the orders issued on 10/7/2007 dismissed the suit for want of prosecution by then, the said suit so dismissed was not between the plaintiffs and the 1st defendant so as to constitute res-judicata. It is further submitted that a suit dismissal for want of prosecution under Order 17 CPR does not prevent an aggrieved party from instituting a fresh suit. They argued that their claim against their father and/or the defendants herein has never been heard on merit and cannot therefore be said to be res-judicata.

In conclusion, the plaintiffs submitted that there is nothing wrong for the plaintiffs to sue the defendants. They argued that as the initial registered owners of the disputed parcel of land, the plaintiffs are at liberty to sue whoever they deem fit to claim against, including the defendants herein. They submitted that the grant of letters of administration ad litem obtained by the plaintiffs on 16/12/2015 was limited to suing in their own names and on behalf of the Estate of their late father as the persons in whose names the disputed parcel of land was registered into his names. They stated that the representative of their late father in this case is the 2nd defendant who is their step mother. Therefore the plaintiffs have rightly sued a representative of their father’s Estate who is their step-mother.

In the upshot, the plaintiffs sought to have the Notice of Preliminary Objection as raised dismissed with costs.

DETERMINATION

The Preliminary Objection as raised is based mainly on whether this suit is res-judicata or not. The other issue is whether the Originating Summons dated 17th February 2016 and amended on 11th October 2016 is bad in law, fatally defective and an abuse of the Court process.

First, the principle of res-judicata was aptly stated by the learned authors of MUUA, Code of Civil Procedure, 8th Edition (2012) at page 293as follows:

“The principle of finality or res-judicata is a matter of public police and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be re-opened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly or at a later stage. The principle is rooted to the rationale that issues decided may not be re-opened and has little to do with the merit of the decision”.

In Trade Bank Limited Vs L.Z Engineering Construction Limited (2001) E.A 266, the Court of Appeal, adopting the definition of issue estoppel in Halsbury’s Laws of England (4th edition) at page 861 stated:

“An estoppels which has come to be known as issue estoppel may arise where a plea of res-judicata could not be established because the causes of action are not the same. A party is precluded from contending the contrary of any precise point which having once already been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of the first and second actions are different, the findings on a matter which came directly (not collaterally or incidentally) in issue on the first action, provided it is embodied in a judicial decision is final, is conclusive in a second action between the same parties and their privies. That principle applies whether the point involved in the earlier decision, and as to which the parties are stopped, is one of fact or one of law, or one of mixed fact and law”.

Again in Attorney General & another ET (2012) e K.L.R, it was held:

“The Courts must always be vigilant to guard litigants evading the doctrine of res-judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in form of a new cause of action which has been resolved by a Court of competent jurisdiction. In the case of Omondi & National Bank of Kenya & others (2001) E.A 177, the Court held that “parties cannot evade the doctrine of res-judicata by merely adding other parties or causes of action in a subsequent suit”. In that case the Court quoted Kuloba J. (as he then was) in the case of Njauju Vs Wambugu & another HCCC No. 234 of 1991 (Nairobi) (unreported) where he stated:

‘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 in every occasion he comes to Court, then I do not see the use of doctrine of res-judicata”.

The plaintiffs in this case are seeking to revoke and/or set aside orders and decrees in SPMCC No. 137 of 2000 (Embu) issued on 12/1/2000 and 10/08/2000. The plaintiffs are also seeking an order for cancellation of title deed in respect of land parcel No. BARAGWI/GUAMA/1853 registered in the name of the 1st defendant. The plaintiff also seek an order to resurvey and sub-divide the suit land and having the same transferred and registered in the joint names of the plaintiffs. From the pleadings and the submissions by the parties, it is not in dispute that in PMCC No. 137 of 2000 (Embu), the plaintiffs were sued by their late father Samuel Kori Ngaire for fraudulently transferring the suit land No. BARAGWI/GUAMA/1853 and causing it to be registered in their joint names. Their late father sought to have an order requiring the current plaintiffs in this case to be removed from his land and also requiring the District Land Registrar Kirinyaga to cancel the title registered in the plaintiffs’ names and reverting it back to the original registered proprietor Samuel Kori Ngaire.

After the plaintiffs failed to enter appearance or file defence, the trial Court entered interlocutory judgment and the matter proceeded for formal proof. The case was heard and judgment was given in favour of the plaintiffs against the defendants. The current plaintiffs were dissatisfied with the judgment of the Court and preferred an appeal to the High Court being HCCA No. 4 of 2001 (Embu). Immediately judgment was entered in favour of their late father and the title reverted back to him. The said parcel of land was registered in his favour on 13/3/2001. On 14/3/2001, a title deed was issued in his favour. On 4/4/2001, the suit property was transferred and jointly registered in the plaintiffs’ father Samuel Kori and his wife Josephine Wakuthii Nyaga and on 10/4/2001, a title deed was issued. On 28/6/2001, the property was transferred to one Edward Mugo Munene.

Instead of appeal against the judgment of the Court in SPMCC No. 137 of 2000 (Embu), the current plaintiffs filed another suit in the High Court being HCCC No. 11 of 2001 (Nairobi) vide a plaint dated 10/8/2001. Instead of pursing that case, the plaintiffs sought and obtained leave to file appeal out of time in SPMCC No. 137/2000 regarding the ruling made on 25/10/2000. They lodged HCCA No. 4 of 2001 (Nairobi). On 5/3/2002, both matters being HCCC No. 11 of 2001 (Nairobi) and HCCA No. 4 of 2001 (Nairobi) were consolidated before Justice Juma. Upon consolidation of the two High Court cases, the same were transferred together with PMCC No. 137 of 2000 to this Honourable Court where they were registered as HCCC No. 9 of 2004 (Embu). On 10/7/2007, the defendants in this case (except the 1st defendant) moved the Court to have the said case dismissed for want of prosecution which was granted. The current plaintiffs did not appeal against the said dismissal. Against this background, I am persuaded beyond peradventure that the present suit is res-judicata. The suit clearly fits the description by Justice Kuloba in the case of Njauju Vs Wambugu (supra) where litigants give cases some cosmetic face lift every time they come to Court. When the plaintiff in this case lost in SPMCC No. 137 of 2000 (Embu), they failed to seek justice from the next port of entry which is the High Court until they filed HCCA No. 4 of 2001 (Nairobi) which was an afterthought. If that was not enough, the plaintiff also filed a fresh suit being HCCC No. 11 of 2001 (Nairobi) which he subsequently sought and obtained an order of consolidation together with the concluded case being SPMCC No. 137 of 2000. All these are ways of giving their cases a cosmetic face lift when the real issues have already been determined by a Court of competent jurisdiction.

In the final analysis, I find the Preliminary Objection merited and the same is hereby upheld. Consequently, this suit is res-judicata and the same is hereby dismissed with costs to the defendants.

READ and SIGNED in open Court at Kerugoya this 28th day of June, 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of:

1. Ms Muthoni for Defendant

2. Plaintiffs/Advocate – absent

3. Court clerk - Mbogo