[2011] KEHC 553 (KLR)
The court found that the applicants' claim for vacant possession of Land No. Gaturi/Weru/440 was res judicata, as the issue had been conclusively determined in previous suits, including Embu HCCC No. 37/03 and Embu SPMCC No. 145/88, with judgments and eviction orders issued against the 1st plaintiff, who never...
Source-derived case information.
- Citation
- [2011] KEHC 553 (KLR)
- Parties
- Plaintiff: Gakono Gakenge; Plaintiff: Andrew Ireri; Defendant: Joshia Nyaga Muruare
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 22 of 2011
- Procedural Posture
- Civil Case / Ruling on Chamber Summons and Originating Summons
- Outcome
- application and originating summons dismissed with costs
- Legal Topics
- Res Judicata, Land Ownership Disputes, Eviction Orders, Jurisdiction of Elders, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gakono Gakenge
Plaintiff
Andrew Ireri
Plaintiff
Joshia Nyaga Muruare
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons and Originating Summons
Legal Issues
- 1 Whether the originating summons is res judicata in light of previous litigation over Land No. Gaturi/Weru/440.
- 2 Whether the court should refer the matter to Elders for determination.
- 3 Whether the application for directions and transfer is an abuse of court process.
Ratio Decidendi
The court found that the applicants' claim for vacant possession of Land No. Gaturi/Weru/440 was res judicata, as the issue had been conclusively determined in previous suits, including Embu HCCC No. 37/03 and Embu SPMCC No. 145/88, with judgments and eviction orders issued against the 1st plaintiff, who never appealed. The court also noted that the Land Disputes Tribunal lacked jurisdiction to determine the matter, and its orders were quashed. The repeated attempts by the applicants to re-litigate the same issue constituted an abuse of the court process. Consequently, both the chamber summons and the originating summons were dismissed with costs.
Court Disposition
application and originating summons dismissed with costs
Orders
- The chamber summons dated 10/6/2011 is dismissed with costs.
- The originating summons is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO. 22 OF 2011
GAKONO GAKENGE............................................................................................1ST PLAINTIFF
ANDREW IRERI........................................................................................2ND PLAINTIFF
VERSUS
JOSHIA NYAGA MURUARE........................................................................DEFENDANT
R U L I N G
The Applicants have filled an originating summons claiming vacant possession in Land No. Gaturi/Weru/440. The Applicant then filed this chamber summons dated 10/6/2011 in which he claims that the court should give directions in this case and if possible refer the case to Elders. It is supported by his affidavit.
The Respondent raised ground of opposition saying the matter is res judicataand it is an abuse of the due process of the court. I have noted with a lot of concern the submissions by counsel.
I have also read the replying affidavit of the respondent/Defendant. From what is on record it’s clear that courts with competent jurisdiction have dealt with the parcel No. Gaturi/Weru/440 and delivered judgments which the Applicant who is the 1st Plaintiff hiding behind the 2nd Plaintiff has never appealed against.
-In Embu HCCC No. 37/03 the 1st Plaintiff was sued over this land by the 2nd Interested Party and the court gave judgment in favour of the 2nd Interested Party Mary Wanjiru Kiiri. Eviction orders were even issued against him. He never appealed.
-In 2006 he went to the Land Disputes Tribunal over the same land. The Elders made some orders in his favour which were later quashed vide Embu High Court Judicial Review No. 6/2010 as the Tribunal lacked the jurisdiction to do so. The 1st Plaintiff now wants this court to issue directions to have the matter heard by this court or it be transferred to the Elders.
-First of all I must point out to the 1st plaintiff and his friend posing as the 2nd Plaintiff that all their actions have been laid be on before this court through the annextures filed by themselves and the Respondent/Defendant. Even before the suit HCCC No. 37/03 (Embu) was filed, the 1st plaintiff herein had sued the Defendant and the others over this same land in Embu SPMCC No. 145/88. The suit was dismissed on 11/6/97. He never appealed!
-Even as this matter is filed here it’s res judicata.
Having been evicted from Gaturi/Weru/440 by an order of this court, if he has returned there as he alleges, it’s trespass.
I find no merit in this Application which I dismiss with costs. The position being what I have stated above, I find the originating summons filed herein to be res judicata and I also dismiss it with costs.
DATED, DELIVERED AND SIGNED AT EMBU THIS 15TH DAY OF NOVEMBER 2011.
H.I. ONG’UDI
JUDGE