[2018] KEELC 4220 (KLR)
The court found that the application for conservatory orders was res judicata, as the issues raised had already been determined in previous related matters, specifically Kisumu HCCC No.8 of 2011 and Kisumu ELC No.10 of 2015. The court adopted its earlier reasoning in Kisumu ELC Petition No.5 of 2016, noting that the...
Source-derived case information.
- Citation
- [2018] KEELC 4220 (KLR)
- Parties
- Applicant: George Rabiik (Suing on behalf of the Comprehensive Course on Franciscan Mission Charism Program); Respondent: Official Liquidator of Cent Sacco Society (In liquidation on behalf of the Commissioner for Co-operative Societies Development); Interested Party: Micro Enterprises Support & Programme Trust (MESPT)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 6 of 2016
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
- Outcome
- Application and petition struck out as res judicata and abuse of court process, with costs to the interested party.
- Legal Topics
- Conservatory Orders, Res Judicata, Land Disputes, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Rabiik (Suing on behalf of the Comprehensive Course on Franciscan Mission Charism Program)
Applicant
Official Liquidator of Cent Sacco Society (In liquidation on behalf of the Commissioner for Co-operative Societies Development)
Respondent
Micro Enterprises Support & Programme Trust (MESPT)
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the petitioner has established an arguable case with a probability of success for issuance of a conservatory order at this stage.
- 2 Whether the application is res judicata in light of previous rulings.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the application for conservatory orders was res judicata, as the issues raised had already been determined in previous related matters, specifically Kisumu HCCC No.8 of 2011 and Kisumu ELC No.10 of 2015. The court adopted its earlier reasoning in Kisumu ELC Petition No.5 of 2016, noting that the only difference was the petitioner and the parcel number. As such, the application was an abuse of court process and could not be entertained. The notice of motion dated 28th September 2016 was therefore struck out, and the petition itself was also struck out, both with costs to the interested party.
Court Disposition
Application and petition struck out as res judicata and abuse of court process, with costs to the interested party.
Orders
- The notice of motion dated 28th September 2016 is struck out as res judicata in view of previous rulings in Kisumu HCCC No.8 of 2011 and Kisumu ELC No.10 of 2015, with costs to the interested party.
- The petition is struck out as an abuse of court process, with costs to the interested party.
Full Case Text
Judgment text and source record
59 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.6 OF 2016 PETITION
IN THE MATTER OF ARTICLES 19, 20,21,22 AND 23 (1) & (3), 40(2), 47(1).
50(1), 73(1), 73(2)(C) AND 159(2) OF THE CONSTITUTITION OF KENYA 2010
AND
IN THE MATTER OF SECTION 96, 97 OF THE LAND ACT NO.6 OF 2012
AND
IN THE MATTER OF SECTION 49, 64, 65, AND 66(1)(A)(F)(I)(N) OF THE
CO-OPERATIVES SOCIETIES ACT CAP 49 LAWS OF KENYA
AND
SECTION 3,4(1)(2)(3)(A)(B) & (G)(4), 6,7,(1) (A)(J)(I)(M)(O) OF THE FAIR
ADMINISTRATIVE ACTIONS ACT, 2015
BETWEEN
GEORGE RUBIIK (Suing on behalf of the Comprehensive Course on
FRANSISCAN MISSION CHARISM PROGRAM……...…….PETITIONER
VERSUS
OFFICIAL LIQUIDATOR OF CENT SACCO SOCIETY
(IN LIQUIDATION ONBEHALF OF THECOMMISSIONER FOR
CO-OPERATIVE SOCIETY DEVELOPMENT...................….RESPONDENT
AND
MICRO ENTERPRISES SUPPORT &
PROGRAMME TRUST (MESPT)………………........INTERESTED PARTY
RULING
1. George Rabiik (Suing on behalf of the Comprehensive Course on Franciscan Mission Charism Program), the Petitioner, seeks for conservatory order restraining Micro Enterprises Support & Programme Trust [MESPT], the Interested Party,by itself or agents from selling, dealing, interfering, alienating disposing of all that parcel of land known as East/Kisumu/Dago/516 pending the hearing and determination of this petition. The application is based on the nine (9) grounds marked (i) to (ix) on its face, and is supported by the affidavit sworn by the Petitioner on the 28th September 2016. The application is also supported by the Official Liquidator of Cent Sacco Society [In liquidation on behalf of the Commissioner for Co-operative Societies Development], the Respondent, through the affidavit sworn by Japheth Atuti, on the 27th October 2016.
2. The application is opposed by the Interested Party through the replying affidavit sworn by Raphael Kuria, the Head of Credit and Business Development, on the 3rd November 2016.
3. The application come up for hearing on the 6th December 2016 when directions on filing and exchanging written submissions were given. That consequently, the counsel for the Petitioner and Interested Party filed their submissions dated 19th May 2017 and 19th June 2017 respectively. That during the mention of the 4th December 2017, when this matter was fixed for ruling today, counsel for the Respondent informed the court that they were not filing any submissions.
4. The following are the issues for the court’s determinations;
a. Whether the Petitioner has established an arguable case with a probability of success for issuance of conservatory order at this stage.
b. Who pays the costs.
5. The court has carefully considered the nine grounds on the notice of motion, affidavit evidence by the Petitioner, Respondent and Interested Party; plus submissions by counsel for the Petitioner and Interested Party and come to the following findings;
a. That paragraphs 5(a) to (h) of the ruling delivered today in Kisumu ELC Petition No.5 of 2016 are adopted in this ruling as the two matters are related in almost all aspects except the name of the Petitioner and parcel number.
b. That accordingly the notice of motion dated 28th September 2016 is res judicata as it contravenes Section 7 of the Civil Procedure Act.
6. That for the reasons set out above the court orders as in Kisumu ELC Petition No.5 of 2016 as follows;
a. That the notice of motion dated 28th September 2016 is res judicata in view of the rulings in Kisumu H C C C No.8 of 2011 and that of 19th April 2016 in Kisumu ELC NO.10 of 2015. That the application is therefore struck out with costs to the interested Party.
b. That in view of the court’s ruling of the 19th April 2016 in ELC Kisumu No.10 of 2015, this petition is an abuse of the courts process and is hereby struck out with costs to the Interested Party.
Orders accordingly.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS7TH .DAY OF MARCH 2018
In presence of;
Petitioner Absent
Respondent Absent
Interested Party Absent
Counsel Mr. Edward for Muma for Petitioner
Mr. Oguso for Respondent and Mr. Arikho for Nthinga for Inter4ested party.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
7/3/2018
7/3/2016
S.M. Kibunja Judge
Joane Court assistant
Parties absent
Mr. Edward for Muma for Petitioner
Mr. Oguso for Respondent
Mr. Arikho for Nthiga for interested party.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
7/3/2018