[2018] KEELC 4787 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 187 OF 2014

CHARLES BARASA MANABA :::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

NORAH WANYAMA ::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT

RULING

The first application is dated 1st November 2012 and is brought under order 2 Rule 15 (1) (b) of the Civil Procedure Rules and section 7 of the Civil Procedure Act seeking the following orders:-

1. The plaintiff’s plaint be and is hereby struck out.

2. Consequent upon the foregoing the plaintiff’s suit be dismissed.

3. THAT the costs be awarded to the defendant.

The defendant/applicant submitted that, her husband bought the land parcel NO. KAKAMEGA/CHEKALINI 556 in 1963 and they occupied in 1964 January, 1st. That she has resided on the same and several other people do reside on land parcel No. Kakamega/Chekalini/556 being Yakobo Kilwake Wanyama, Enock Kwanusu, Gladys Auma Ndege, Everline Indekwa Josphat and herself together with her entire family. That the plaintiff filed Kakamega CMCC No. 186 of 2000 (annexture marked NW 1) That they filed a defence and notice to raise a preliminary objection (annexture marked NW 2 (a), (b) and (c)). That as seen from the documents filed by the plaintiff the suit was struck out for being time barred. (annextures marked NW 3). That once the suit was struck out for being time barred the time barred did not change. That no appeal was preferred therefrom. That in any case the suit is time barred, the cause of action having arisen more than 12 years ago (48 years) to be precise. That the suit herein is thus an abuse of the court process for being both time barred and Res Judicata. That the suit is also Res Judicata.

The plaintiff submitted that, the principle of Res Judicata is not available to the defendant/applicant since the Kakamega CMCC No. 186 of 2010 was not heard and determined by a court of competent jurisdiction. The suit was dismissed for want of jurisdiction of the court as can be gathered from the ruling dated 1st November, 2000. That after the suit was dismissed he filed land dispute No. 6 of 2003 in the Lugari Land Disputes Tribunal (Annexed find a copy of a summons to the defendant (marked CBM1). The case was not heard by the Tribunal because it was disbanded by the minister for lands and he searched for legal advise until 20th August, 2012 when he filed this suit, therefore, he has not slept over his right to pursue his interest in the land. The suit is not therefore time barred. That by 1963 the land belonged to the Settlement Fund Trustee against whom adverse possession could not apply and the defendant and her family were squatters against the Settlement Fund Trustee. Therefore computation of time from 1963 for the purpose of adverse possession is wrong. That the suit land was allocated to his father in 1983 and the defendant and her family became trespassers against him. His father filed civil suit No. 74 of 1985 against the defendant demanding her eviction from the land, (Annexed is a copy of the plaint marked CBM2). That his suit cannot be appropriately described as being an affront to the court process when he has been making every endeavour to ventilate his rights over the land through legal process; being the lawful registered proprietor of the land. (Annexed is a copy of the land certificate marked CBM3) That the defendant’s application is clearly an abuse of the process of the court as she is trying to make use of the legal process to snatch the land from him while she knows pretty well that she has no title whatsoever to the land.

The second application is dated 30th July 2014 and is brought under order 8 rule 3 of the civil procedure rules seeking the following orders;

1. The court grants him leave to amend the pleadings to add 4 more defendants.

2. The court considers the draft amended pleadings as having been duly filed.

3. Costs be in the cause.

The defendant submitted that, the application is baseless, unmerited and an abuse of the court process. That the pleading closed way back in January, 2013 (annexture marked NW 1) That the applicant is not just and expedient in amending a plaint dated 28/8/2012. That the application is made too late in the day as 4 years down the line is a very long time. That the reason advanced by the plaintiff is not genuine and is an afterthought. That the application is meant to delay the prosecution of the suit.

The defendant submitted that, the suit herein is res judicata, Kakamega CMCC NO. 186 of 2000, Charles Barasa Manaba vs. Norah Wanyama. It is further the applicant’s case that the suit is time barred and consequently should be struck out. The plaintiff respondent filed Kakamega CMCC NO. 186 of 2000, Charles Barasa Manaba vs Norah Wanyama seeking an order of injunction to permanently stop the defendant together with her relatives and/or agents from further interfering with the plaintiff’s use of the suit land and from remaining on or continuing in the occupation of the said parcel of land and from remaining on or continuing in the occupation of the defendant together with her agents, servants and/or relatives from the suit land. The suit was dismissed for reasons that it was time barred and that court lacked jurisdiction to entertain that suit. The plaintiff did not challenge that dismissal order as no appeal was preferred therefrom. It is their submissions that one the suit was dismissed for being time barred, the time barred did not change, and in any case the suit is time barred, cause of action being arisen more than 12 years ago (53 years ago to be precise). The plaintiff/respondent has decided to file this suit 12 years after it was dismissed, seeking similar orders of eviction and injunction. The defendant submitted that the suit herein is an abuse of the court process for being both time barred and res judicata. They relied on the authority of NJUE NGAI VS. EPHANTUS NJIRU NGAI & ANOTHER [2015] EKLR where the court held that:-

“..... the principle of res-judicata is provided for in section 7 of the Civil Procedure Act. In terms of the provisions of that statute, for that principle to apply, the following must be established;

1. That the suit has been previously litigated upon by the same parties and a judgment was delivered therein.

2. That the same issue is revived again to be litigated upon by the same parties and involving the same subject matter ................. once it is established that the same issue is revived in the subsequent suit in which it has not been heard and finally determined by a court of competent jurisdiction, the matter cannot be litigated again ...................’

The court in the instant matter held that the matter was res-judicata and proceeded to uphold the preliminary objection on account of the suit being res-judicata.

The pleadings closed way back in January, 2013 and therefore an application made four years down the line is a very long time. It is therefore not just and expedient in amending a plaint dated 28/8/2012. They relied on the authority of MAURICE OOKO OTIENO VS. MATER MISERICPORDIAE HOSPITAL [2004] eKLR where a similar application by the plaintiff to amend his plaint on the precept that he was adding another defendant was rejected as it was time barred by statute. In the words of the court it was held that,

‘.............. I would hold that the substitution of the defendant to the current one was time barred by statute .......... I would uphold the preliminary objection and hereby strike out this suit with costs to the defendants .................’

Further the reason advanced by the plaintiff is not genuine and is an afterthought. As evidenced from the suit filed in 2000 being Kakamega CMCC NO. 186 of 2000, Charles Barasa Manaba vs. Noah Wanyama, it is clear that the plaintiff’s claim was and is against the defendant. Therefore, addition of other defendants to this suit is only meant to delay the prosecution of this suit and is also not a ground for amending pleadings. They therefore submit that the plaintiff’s application dated 30/7/2014 is bad in law, an abuse of the court process and ought to be dismissed with costs to the defendant.

The plaintiff submitted that Paragraph 3 (b) of the Amended Defence revealed other persons who assist the defendant to trespass on the plaintiff’s land and this has prompted the plaintiff to amend his plaint to include these people. Their names are (1) YAKOBO KILWAKE WANYAMA (2) ENOCK KWANUSU (3) GLADYS AUMA NDEGE (4) EVERLYNE INDEKWA JOSPHAT

Instead of preferring third party proceedings to bring these people on board, the defendant has joined hands with them and they have filed an originating summons against the plaintiff in ELC Case No. 49 of 2014 whereby the plaintiff herein has become the defendant. The plaintiff has filed a Preliminary Objection to the summons which will be heard on 13th March, 2018.

The plaintiff did not know the other trespassers until the defendant revealed them in her written statement of defence. It would be fair and convenient to allow the plaintiff to amend the plaint to save him the trouble of having to file several cases against the trespassers. The defendants, if enjoined, will be represented by the same firm of Advocates (MAGARE & CO. ADVOCATES) which firm is representing the defendant herein and filed the originating summons for the defendant and her colleagues in ELC Case No. 49 of 2014.

On striking out the suit, Civil Suit No. 186 of 2000 was dismissed on 25th October, 2000 because the plaintiff had brought the case to the wrong forum. The proceedings for 25/10/2000 show clearly that the advocate for the defendant raised a preliminary objection on a point of law disputing the jurisdiction of the court. The court upheld his objection and dismissed the suit. The court did not hear and determine the suit because the court was not competent to do so. RES-JUDICATA is governed by section 7 of the Civil Procedure Act Cap 21 of the Laws of Kenya. It enacts thus “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.”

In a nut shell, when a court of competent jurisdiction has heard and finally decided a suit the second court of competent jurisdiction is not allowed to entertain the same suit again. This is the meaning of Res judicata. The plaintiff’s case was dismissed because the court had no jurisdiction to try it. The present court has the necessary jurisdiction to try the suit which is not affected by the doctrine of Res judicata.

Since the former court had no jurisdiction it could not determine and it did not determine the issue of Limitation of Actions Act. It cannot therefore be true that the suit was dismissed because of Limitation time. Nevertheless, the plaintiff has explained how he endevoured to pursue his claim after his Kakamega Chief Magistrate’s case No. 186 of 2010 was dismissed, in his Replying affidavit dated 26th February, 2013.

The plaintiff is not claiming title of the land from the defendant for him to be governed by the 12 year rule under the Limitation of Action Act Cap 22 laws of Kenya. He has got the title to the land and all that he is seeking are the normal orders against the defendant who is trespassing on his property, to enable his to recover vacant possession of his land which is 10. 9 Ha in area. The father of the plaintiff filled a suit No. 74 of 1985 which was a claim in Trespass against the defendant, but his father died and he inherited the land and he also sued the defendant in Trespass in civil Suit No. 186 of 2010 which was struck out owing to lack of jurisdiction of the court.

The effect of the two suits was to STOP TIME from running in favour of the Trespasser against the proprietor of the land (the plaintiff). The plaintiff made efforts and filed a land dispute at the defunct Lugari Land disputes Tribunal (Claim No. 6 of 2013). Unfortunately the tribunals were abolished and after searching for legal advice he managed to file this suit. It is our humble submission that the plaintiff’s time was protected by the suits which he endevoured to sue against the defendant. Because of those suits the defendant may not even claim title from the plaintiff by the doctrine of Adverse Possession. This can be clarified by the case of NDATHO VS. ITUMO & 2 OTHERS [2002] 2 KLR 637. It is therefore our humble submission that the plaintiff’s suit is not time barred.

This court has carefully considered the plaintiff’s and the defendant’s submissions in both the applications. In the first application the grounds are that, the suit herein is res judicata, Kakamega CMCC No. 186 of 2010. The suit is time barred. That suit is otherwise an abuse of the court process. The court is functus officio. It is fair, just and expedite that this application be allowed. This suit is frivolous, vexatious and scandalous.

The second application is based on the following that the plaintiff has discovered that the defendant has invited four other people who jointly occupy the land unlawfully. The plaintiff submitted that he has learned from civil suit No. 49 of 2013 filed against me by the defendant that four other people occupy my land unlawfully jointly with her, hence his desire to join them with the defendant in this suit (Annexed is a copy of the originating summons in that case marked as C.B.M.1)

The provisions of proving res judicata are clearly spelt out in section 7 of the Civil Procedure Act as follows;

“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 suitor the suit in which such issue has been subsequently raised, and has been heard and subsequently decided by such court”.

On perusal of the the proceedings attached of Kakamega CMCC No. 186 of 2010 the suit was dismissed on 25th October, 2000 because the plaintiff had brought the case to the wrong forum. The proceedings for 25th October 2000 show clearly that the advocate for the defendant raised a preliminary objection on a point of law disputing the jurisdiction of the court. The court upheld his objection and dismissed the suit. The court did not hear and determine the suit because the court was not competent to do so. I therefore find that this matter does not fall under what is contemplated in the provisions of proving res judicata are clearly spelt out in section 7 of the Civil Procedure Act. The court was not competent to hear the matter hence it cannot now be said to be re judicata.

Be that as it may, the defendant/applicant submitted that, her husband bought the land parcel NO. KAKAMEGA/CHEKALINI 556 in 1963 and they occupied in 1st January1964. That she has resided on the same and several other people do reside on land parcel No. Kakamega/Chekalini/556 being Yakobo Kilwake Wanyama, Enock Kwanusu, Gladys Auma Ndege, Everline Indekwa Josphat and herself together with her entire family. That the plaintiff filed Kakamega CMCC No. 186 of 2000 ( annexture marked NW 1) That they filed defence and notice to raise a preliminary objection (annexture marked NW 2 (a), (b) and (c)). That as seen from the documents filed by the plaintiff the suit was struck time barred. (annextures marked NW 3). That once the suit was struck out no appeal was preferred therefrom.

The plaintiff does not dispute this but states that he is not claiming title of the land from the defendant for him to be governed by the 12 year rule under the Limitation of Action Act Cap 22 laws of Kenya. He has got the title to the land and all that he is seeking are the normal orders against the defendant who is trespassing on his property, to enable his to recover vacant possession of his land which is 10. 9 Ha in area. The father of the plaintiff filled a suit No. 74 of 1985 which was a claim in Trespass against the defendant, but his father died and he inherited the land and he also sued the defendant in Trespass in civil Suit No. 186 of 2010 which was struck out owing to lack of jurisdiction of the court.

I find that this suit is time barred, the cause of action having arisen more than 12 years ago. It was filed in this Court in 2012. Whichever way you look at it this suit has been brought to court well over twelve years. The plaintiff is claiming orders against the defendant against trespassing on the property, to enable his to recover vacant possession of the land from the defendant and this is governed by the 12 year rule under the Limitation of Action Act Cap 22 laws of Kenya.

I find that the application dated 1st November 2012 has merit and consequently from the foregoing the plaintiff’s suit be dismissed with costs to the defendant. On the second application dated 30th July 2014 to amend the pleadings to add 4 more defendants the same cannot stand the suit having been dismissed and I dismiss it with costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 25TH DAY OF JANUARY 2018.

N.A. MATHEKA

JUDGE