[2012] KEHC 2405 (KLR)
The court found that the issues raised in the applicant's motion had already been raised, canvassed, and determined in previous proceedings, specifically in the motion dated 25th January 2010 and the ruling delivered on 1st April 2011. The applicant failed to provide new evidence or demonstrate any error apparent on...
Source-derived case information.
- Citation
- [2012] KEHC 2405 (KLR)
- Parties
- Applicant: Jeremiah Wanjau Githae; Respondent: Francis Githae; Respondent: Joseph Mundia Muchemi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 1992
- Procedural Posture
- Civil Appeal / Ruling on Motion for Review and Cancellation of Land Titles
- Outcome
- motion dismissed
- Judges
- JK Sergon
- Legal Topics
- Review of Court Orders, Land Title Cancellation, Mutation Forms, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Wanjau Githae
Applicant
Francis Githae
Respondent
Joseph Mundia Muchemi
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion for Review and Cancellation of Land Titles
Legal Issues
- 1 Whether the court should review and set aside its ruling delivered on 1st April 2011.
- 2 Whether the mutation forms used for sub-division of land parcel Iriani/Chehe/950 were fake and should be nullified.
- 3 Whether the titles issued pursuant to the alleged fake mutation forms should be cancelled and the original title reinstated.
Ratio Decidendi
The court found that the issues raised in the applicant's motion had already been raised, canvassed, and determined in previous proceedings, specifically in the motion dated 25th January 2010 and the ruling delivered on 1st April 2011. The applicant failed to provide new evidence or demonstrate any error apparent on the face of the record to justify a review. The court emphasized that it is enjoined by law not to revisit matters that are res judicata. Furthermore, the applicant did not discharge the burden of proof regarding the alleged fake mutation forms. Consequently, the court dismissed the motion as lacking merit and being barred by the doctrine of res judicata.
Court Disposition
motion dismissed
Orders
- The motion dated 8th September 2011 is dismissed.
- Costs of the application are awarded to the 2nd respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 25 of 1992
JEREMIAH WANJAU GITHAE...........................................................................................................APPLICANT
-versus-
FRANCIS GITHAE...................................................................................................................1ST RESPONDENT
JOSEPH MUNDIA MUCHEMI................................................................................................2ND RESPONDENT
(Being an appeal from the Ruling of J. S. Mushelle, Senior Resident Magistrate, in NyeriSenior Resident Magistrate\'s
Civil Case No.21 of 1989 delivered on17th March 1992 at Nyeri).
R U L I N G
This ruling is the outcome of the motion dated 8th September 2011 in which Jeremiah Wanjau Githae has sought for the following orders:
“1. That the ruling of the court read on 1st April 2011 be reviewed and set aside.
2. That the fake mutation forms in regard to sub-division of land parcel Number Iriani/Chehe/950 signed by M/s C. N. Githae and Joseph Mundia Muchemi dated 6/6/92 be nullified and cancelled including titles issued pursuant to that mutation.
3. That the titles issued pursuant to that mutation form dated 6/6/92 be cancelled and Number Iriani/Chehe/950 be reinstated to enable registration of mutation form signed by Githae Guthua, Francis C. N. Githae, Joseph Mundia Muchemi and Jeremiah Wanjau Githae dated 6/11/85 to be registered and acted upon as per court order.
4. That costs of this application be ordered against Joseph Mundia Muchemi.”
The motion is supported by the affidavit of Jeremiah Wanjau Githae. The 2nd Respondent, Joseph Mundia Muchemi, filed grounds of opposition to resist the motion.
The Applicant argued that the 2nd Respondent falsely told the Principal Magistrate\'s Court at Nyeri that the appeal had been finalized yet he knew that was not true. It is also stated that the 2nd Respondent used fake mutation forms to obtain title of a portion in L.R. No.Iriaini/Chehe/950. It is said that the Land Control Board\'s consent was obtained long after Githae had passed away. The 2nd Respondent stated that the mutation forms were not fake but were duly executed by the parties and acted upon. I have carefully perused the ruling of this court delivered on 1st April 2011 and it is clear that the issues raised in this motion were also raised and argued in the motion dated 25th January 2010. Those issues were canvassed and determined. In order to appreciate what I am saying, let me refer to pages 7 and 8 of that ruling in which I stated as follows:
“I have carefully perused the application referred to as exparte Chamber Summons dated 22nd December 1992 plus the supporting affidavit. In the aforesaid application, the 2nd Respondent simply applied for the order of injunction issued on 21st March 1989 which had halted any move to sub-divide L.R. NO.IRIAINI/CHEHE/950 pending the hearing and determination of Nyeri P.M.C.C. 21 of 1989. By that time, the aforesaid suit had been referred to arbitration and the award filed and adopted by the court on 17th March 1992. The order was granted. By then there was no order of stay issued. Surely, the 2nd Respondent cannot be faulted when he averred that Nyeri P.M.C.C. No.21 of 1989 had been finalized. It is alleged that fake mutation forms had been used to obtain title deeds. With respect, the alleged fake mutation forms have not been availed to this court. On this score, the Applicant has miserably failed to discharge the burden of proof. Even if the Applicant had discharged the burden of proof, I doubt whether he could come through this file to seek for the orders.
In the end, I see no merit in the Motion. It is dismissed with costs to the 2nd Respondent.”
It is clear therefore, that this court is enjoined by law not to go back to some issues it has made a finding on. I am convinced the matters raised in this motion are resjudicata. I dismiss the motion with costs to the 2nd Respondent.
Dated and delivered this 17th day of August 2012.
J. K. SERGON
JUDGE