[2020] KEELC 581 (KLR)
The court found that the present application sought eviction orders identical to those previously sought and dismissed in ELC No. 79 of 2013. The court held that the matter was directly and substantially in issue in the earlier application, which had been heard and determined. Therefore, the doctrine of res judicata...
Source-derived case information.
- Citation
- [2020] KEELC 581 (KLR)
- Parties
- Applicant: John Anyangu Moyi; Applicant: Joseph Moyi; Respondent: Ronald Were Mwachi; Respondent: Dr. Francis Mbasira; Respondent: Teresa Awuor; Respondent: Hellen Indimuli; Respondent: Maricianan Cheti; Respondent: Humphrey Ndenga; Respondent: Fred; Respondent: Ambrose Oduor; Respondent: Mary Orapidi; Respondent: Linus M.S. Lumbemb
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case E1 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application struck out as res judicata; costs to respondents
- Judges
- NA Matheka
- Legal Topics
- Res Judicata, Eviction Orders, Enforcement of Judgments, Trespass, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Anyangu Moyi
Applicant
Joseph Moyi
Applicant
Ronald Were Mwachi
Respondent
Dr. Francis Mbasira
Respondent
Teresa Awuor
Respondent
Hellen Indimuli
Respondent
Maricianan Cheti
Respondent
Humphrey Ndenga
Respondent
Fred
Respondent
Ambrose Oduor
Respondent
Mary Orapidi
Respondent
Linus M.S. Lumbemb
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application for eviction orders is res judicata in light of a previous similar application and ruling.
- 2 Whether eviction orders can be obtained through a miscellaneous application rather than a substantive suit.
- 3 Whether the judgment in ELC No. 79 of 2013 can be enforced against respondents who were not parties to that suit.
Ratio Decidendi
The court found that the present application sought eviction orders identical to those previously sought and dismissed in ELC No. 79 of 2013. The court held that the matter was directly and substantially in issue in the earlier application, which had been heard and determined. Therefore, the doctrine of res judicata applied, barring the applicants from re-litigating the same issue. Additionally, the court reiterated that eviction orders are substantive and cannot be granted through a miscellaneous application. The court also noted that some respondents were not parties to the original suit, making enforcement of the previous judgment against them improper. Consequently, the preliminary...
Court Disposition
application struck out as res judicata; costs to respondents
Orders
- The preliminary objection is upheld.
- The application is struck out as res judicata.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC MISC. CASE NO. E1 OF 2020
JOHN ANYANGU MOYI
JOSEPH MOYI.............................................................................................APPLICANTS
VERSUS
RONALD WERE MWACHI )
DR. FRANCIS MBASIRA )
TERESA AWUOR )
HELLEN INDIMULI )
MARICIANAN CHETI )
HUMPHREY NDENGA )
FRED )
AMBROSE ODUOR )
MARY ORAPIDI )
LINUS M.S. LUMBEMB )............................................................................RESPONDENTS
RULING
The respondents herein raised a point of preliminary objection to the application herein in light of an earlier similar application dated 20th September, 2019 in ELC No. 79 of 2013 which was heard and a ruling delivered.
They submitted that the orders of eviction being sought by the applicants are substantive orders and cannot be obtained through a mere application as noted by the court in its ruling dated 23rd June, 2020 in ELC No. 79 of 2013. That whereas the applicants are seeking eviction orders based on the judgment dated 27th February, 2019 in ELC No. 79 of 2013, the court in its ruling dated 23rd June, 2020 in the said case agreed that it never gave eviction orders as eviction orders were never sought for and further that the rest of the respondents were never party to that case hence the said judgment could not be enforced against them and therefore the application is misplaced and is res judicata.
The respondent opposed the preliminary objection and submit that the respondents are trespassers as the applicants obtained judgement in their favour for possession of the suit property. That as the legal owners they have absolute rights to the suit property.
This court has considered the preliminary objection and the submissions therein. Section 6 and 7 of the Civil Procedure Act Cap 21 provides as follows:
Section 6.
“No court shall proceed with the trial of any suit or proceedings in which the matter in issue is directly and substantially in issue in a previously instituted suit or proceedings between the same parties, or between parties under whom they or any of them claim, litigate under the same title, where such suit or proceedings is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”
Section 7.
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
I have perused the documents in this case and find that there has been an application of a similar nature dated 20th September, 2019 seeking similar orders of eviction against the respondents in Kakamega ELC No. 79 of 2013 and which was dismissed by this honourable court and I therefore find the present application is res judicata and should be struck out with costs (RWM-1a, 1b, 1c copies of the application, grounds of opposition and the ruling). The applicants were advised that they cannot seek to enforce the right of eviction through an application. . I find the preliminary objection has merit and I uphold the same. This application is struck off with costs to the respondents.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 25TH NOVEMBER 2020.
N.A. MATHEKA
JUDGE