[2013] KEHC 2499 (KLR)
The court found that although the subject matter and parties are the same as in the previous proceedings before the Land Disputes Tribunal, the issues raised in the current suit are not those envisaged under Section 7 of the Civil Procedure Act. Specifically, the Tribunal lacked jurisdiction to grant the declaratory...
Source-derived case information.
- Citation
- [2013] KEHC 2499 (KLR)
- Parties
- Plaintiff: Charles Gordon Indiwa; Defendant: Norah Chebet Ndiwa; Defendant: Tecla Chepangor Ndiwa; Defendant: The Chairman Mt. Elgon LDT
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 46 of 2011
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Res Judicata, Land Disputes Tribunal Awards, Jurisdiction of Tribunals, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Gordon Indiwa
Plaintiff
Norah Chebet Ndiwa
Defendant
Tecla Chepangor Ndiwa
Defendant
The Chairman Mt. Elgon LDT
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is barred by the doctrine of res judicata.
- 2 Whether the Land Disputes Tribunal had jurisdiction to grant the reliefs sought in the plaint.
Ratio Decidendi
The court found that although the subject matter and parties are the same as in the previous proceedings before the Land Disputes Tribunal, the issues raised in the current suit are not those envisaged under Section 7 of the Civil Procedure Act. Specifically, the Tribunal lacked jurisdiction to grant the declaratory and injunctive reliefs sought by the plaintiff, and therefore, the current suit is not barred by res judicata. The preliminary objection was thus unmerited and disallowed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is disallowed with costs to the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL CASE NO. 46 OF 2011
CHARLES GORDON INDIWA ….....…...........…….... PLAINTIFF
VERSUS
NORAH CHEBET NDIWA …………....….…..…. 1ST DEFENDANT
TECLA CHEPANGOR NDIWA...................... 2ND DEFENDANT
THE CHAIRMAN MT. ELGON LDT …............ 3RD DEFENDANT
RULING
The 1st and 2nd defendants raised a preliminary point of law that the plaintiff's suit is res judicata.
As per Mr. Juma for the 1st and 2nd defendants, the dispute before court is in respect of L.R. NO. Elgon/Chemonge/297. This was arbitrated by Mt. Elgon Land Disputes Tribunal and its finding adopted as order of court in Kimilili PMCC NO. 17 of 2009.
According to counsel, the plaintiff admits participating in the proceedings before the Tribunal at paragraph 6 of his plaint. The present suit regards same subject matter and same parties. That this suit is asking the court to sit on appeal. He urged the suit to be struck out for being res judicata.
The plaintiff opposed the preliminary point. His arguments is that he was not informed when the award was read. He urged the court to dismiss the preliminary objection as the Tribunal lacked capacity to arbitrate the dispute. These are the prayers contained in the plaint;
“(a). Declaratory order that the purported proceedings and deliberations, verdict and award of plaintiff's portion of land vide parcel No. L.R. NO. Elgon/Chemonge/297 to the 1st defendant are null and void.”
“(b). Permanent injunction to restrain the defendants, their agents and/or servants from interfering with the plaintiff's land.”
Essentially the plaintiff is questioning the verdict of the Tribunal. Although the subject matter is the same, the issues raised is not what is envisaged under Section 7 of the Civil Procedure Act. The Tribunal cannot question it's own decision nor issue injunctive orders, temporary or otherwise while adjudicating a subject matter. The tribunal cannot grant the prayers currently sought in the plaint.
The defendants can challenge the suit on its merit but res judicata is not open avenue in this case. It's the court's finding that the preliminary objection is therefore unmerited and is disallowed with costs to the plaintiff.
RULING DATED, SIGNED, READ and DELIVERED in open court this 26th day of June 2013
A. OMOLLO
JUDGE.