[2023] KEELC 22336 (KLR)

Ethics and Anti Corruption Commission v Leading Developers Limited & 6 others (Environment and Land Case Civil Suit E359 of 2021) [2023] KEELC 22336 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22336 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Case Civil Suit E359 of 2021

LN Mbugua, J

December 14, 2023

Between

Ethics and Anti Corruption Commission

Plaintiff

and

Leading Developers Limited

1st Defendant

Al Bushira Properties Limited

2nd Defendant

Al-Imran Investments Limited

3rd Defendant

Computerlearn Enterprises Limited

4th Defendant

R.S Wambugu t/a Panjinya Enterprises

5th Defendant

Nelson Waswa Otido

6th Defendant

Hezron Oluoch

7th Defendant

Ruling

1. There is a pending application and a preliminary objection for determination in this matter.

The Preliminary Objection dated 24. 11. 2021 2. The above Preliminary Objection was brought forth by the 1st

3. Defendant who contends that this suit is res judicata to the case Misc Case No. 709 of 2012 which matter was settled.

4. The preliminary Objection was canvassed by way of written submissions. The 1st Defendant filed submissions dated 16. 10. 2023, arguing that the issue in Misc. Case No. 709 of 2012 was based on transfer of LR No. 36 /VII/254 which is also the issue for determination before this court.

5. It is further submitted that the former suit was filed by the 3rd Defendant herein against the Registrar of Government Lands & 2 others who were government bodies while the instant suit was also filed by a government body. Thus the filing of multiple suits amounts to abuse of the court process.

6. The case of Heritage Insurance Company Limited v Patrick Kasina Kisilu [2015] eKLR, Omondi v National Bank of Kenya Ltd and others[2001] 1EA 175 as well as the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & 3 others [2013] eKLR are relied upon.

7. In opposition thereof, the plaintiff filed submissions dated 31. 10. 2023, where it argues that the elements which give rise to res judicata as identified in the case of Uhuru Highway Development ltd v Central Bank of Kenya [1999] eKLR as well as the case of Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] eKLR have not been met.

8. It is argued that the issues raised in the instant suit are materially different from the issues in Misc. Case No. 709 of 2012 where the 1st Defendant herein sought a declaratory order that he is the legal and beneficial owner of LRNo. 36/254/VII and the court did not make a determination on the issue, it only granted an order of removal of the caveat registered on the property, thus it did not determine the issue of ownership which is the issue for determination herein.

9. It is argued that the parties in the suit are different save for the 3rd Defendant and neither the 1st Defendant nor the Plaintiffs were parties in the former suit.

10. The 2nd - 7th Defendants neither filed responses nor submissions.

11. I have considered all the arguments raised herein. The issue for determination is whether this suit is res-judicata to the suit Miscellaneous Civil Suit No. 709 of 2012 (hereinafter, the earlier suit).

12. The elements to be surpassed for res judicata to succeed have been stated in the case of Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR.

13. A perusal of the pleadings filed in Miscellaneous Civil Suit No. 709 of 2012 indicate that the case was between Al-Imran Investments Ltd as the applicant against the Registrar of Government Lands, Commissioner of Lands & the Attorney General. The said applicant (now 3rd defendant) sought orders to be declared owner of the subject property herein, LR 36/VII/254. Vide orders dated 12. 3.3013, the suit was marked as settled with the Defendants being ordered to lift a caveat which they had placed on the suit property.

14. At the center of this suit is the issue of ownership of the same parcel. That issue was not conclusively brought to finality in the consent order. I therefore find that the element of res-judicata has not been established. The preliminary objection is hereby dismissed. Each party is to bear their own costs of the preliminary objection.

Application dated 7. 7.2023 15. In the above application, the firm of M/s Guandaru Thuita & Co. Advocates are seeking leave to cease acting for the 5th defendant and that costs be provided for.

16. The application is opposed by the Plaintiff vide grounds of opposition dated 16. 10. 2023. It contends that it cannot be condemned to pay costs of the application as it is acting in public interest pursuant to its mandate under Section 11 (1) (j) of the Ethics and Anti-Corruption Commission Act, 2011.

17. There is no logical explanation as to why the applicants are praying for costs. The issue of their withdrawal from acting is between them and their clients. In the circumstances, the application dated 16. 10. 2023 is allowed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/s Biwott for the PlaintiffKimathi for 1st DefendantM/s Amande for 3rd DefendantDetho for 7th Defendant