[2006] KEHC 2513 (KLR)
The court found that the dispute between the parties had already been referred to the Land Dispute Tribunal at the plaintiff's own request, and the Tribunal's decision was subsequently adopted as a judgment by the Magistrate's court. The plaintiff did not appeal or seek to set aside that judgment. The present suit...
Source-derived case information.
- Citation
- [2006] KEHC 2513 (KLR)
- Parties
- Plaintiff: Daniel Maina Thuo; Defendant: Zakariah Maina Thuo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 427 of 1997
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- Suit struck out as res judicata; defendant's application allowed.
- Judges
- JA Aluoch
- Legal Topics
- Res Judicata, Land Disputes, Injunctions, Arbitration Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Maina Thuo
Plaintiff
Zakariah Maina Thuo
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata due to a previous decision between the same parties on the same subject matter.
- 2 Whether the plaintiff is entitled to a permanent injunction against the defendant regarding land parcel NYANDARUA/NYANDARUA/94.
- 3 Whether the matter was properly referred to and determined by the Land Dispute Tribunal and adopted as a judgment of the court.
Ratio Decidendi
The court found that the dispute between the parties had already been referred to the Land Dispute Tribunal at the plaintiff's own request, and the Tribunal's decision was subsequently adopted as a judgment by the Magistrate's court. The plaintiff did not appeal or seek to set aside that judgment. The present suit sought substantially the same reliefs and involved the same parties and subject matter as the previous proceedings. The court held that the suit was therefore barred by the doctrine of res judicata. The plaintiff's failure to prosecute the suit or to take steps to enable another to act on his behalf, despite repeated adjournments, further justified striking out the suit. The...
Court Disposition
Suit struck out as res judicata; defendant's application allowed.
Orders
- Prayers 1, 2, and 3 in the Chamber Summons application dated 23rd May, 2005 are granted.
- The suit is struck out as res judicata.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 427 of 1997
DANIEL MAINA THUO ………..................................................………………. PLAINTIFF
VERSUS
ZAKARIAH MAINA THUO …………...........................................………… DEFENDANT
RULING
The defendant moved the court to have this suit struck out, “as the matter directly and substantially in issue has been litigated between the parties in a former suit between the same parties ……… and has been heard finally and decided by a court of competent jurisdiction”. The defendant’s affidavit supported the application to court. It gave the history of the litigation that has gone on so far between the parties.
The affidavit was sworn by Zakaria Maina Thuo, on 23rd May, 2005.
Annexed to the affidavit was a court order issued on 1st April, 2005, by the Resident Magistrate, Naivasha, adopting the decision of the Land Dispute Tribunal Case No. 8 of 2002 between the parties (Zakaria Maina Thuo) and (Daniel Maina Thuo) as “the judgment of the court”.
The court granted a further order, an injunction to restrain the respondent (Daniel Maina Itumu), from
“entering, interfering or in anyway alienating or committing acts of waste in the applications land parcel No. NYANDARUA/NYANDARASI/89 or at all”.
It was respondent in that suit, Daniel Maina Itimu, who is the plaintiff in this suit, who had filed the present suit claiming,
“a permanent injunction restraining the defendant (Zakariah Maina Thuo) from interfering, wasting, damaging, alienating or wrongful selling the plaintiff’s land being NYANDARUA/NYANDARUA/94”.
He had also prayed that the matter be referred to arbitration under the Lands Dispute Tribunal Act, which was done and the award taken to the Magistrate’s court and was finally made a judgment in this dispute as I have stated above.
The plaintiff did not file a replying affidavit to the present application of 23rd May 2005. The reason given before me was that he had had a stroke.
Counsel for the defendant objected to that reasoning as the same had been given in court before, and no action was taken thereafter by his lawyers on record.
Indeed I scrutinized the court file and found that the application was tabled in court on 14th November, 2005, for hearing when the same advocate for the plaintiff told court that his client had had a stroke, and “was unable to proceed.”
The court adjourned the application. Another date was taken in the Registry and once more the matter could not proceed.
When the application was tabled before me for hearing on 23rd March, 2006. Counsel for the plaintiff requested for an adjournment giving the same reason.
I declined to grant an adjournment because I considered that counsel for the plaintiff had had sufficient time to have a power of Attorney executed on behalf of his client to enable another person to take over the suit on behalf of the plaintiff.,
Besides, when I read the pleadings on record so far, I found that this case had been referred to Arbitration under the Lands Dispute Tribunal’s Act, as prayed in the plaint, and a decision from the Tribunal had been taken to the Magistrate’s court, and the same confirmed as a Judgment. In the circumstances, I did not find it necessary to delay the proceedings any further, as the plaintiff never appealed against the Magistrate’s order, confirming the award as the judgment in this dispute. In view of this, I have decided to grant prayers 1,2 and 3 in the Chamber Summons application dated 23rd May, 2005.
Dated at Nairobi this 19th day of May, 2006.
JOYCE ALUOCH
JUDGE