[2006] KEHC 2694 (KLR)
The court found that the District Land Tribunal did not have jurisdiction to determine disputes concerning registered land. Consequently, any decision made by the Tribunal regarding the subject land was null and void and could not form the basis for a plea of res judicata. The previous suit, having been determined...
Source-derived case information.
- Citation
- [2006] KEHC 2694 (KLR)
- Parties
- Plaintiff: John Kiptoo Siren; Defendant: Charles K. Omboi; Defendant: Jeremiah Ontiri; Defendant: The Chairman Iten Land Disputes Tribunal through the Attorney General
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 108 of 2005
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Res Judicata, Jurisdiction of Land Tribunals, Preliminary Objection, Registered Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kiptoo Siren
Plaintiff
Charles K. Omboi
Defendant
Jeremiah Ontiri
Defendant
The Chairman Iten Land Disputes Tribunal through the Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata due to previous litigation on the same subject matter.
- 2 Whether the District Land Tribunal had jurisdiction over registered land.
- 3 Whether the suit offends Order VII rule 1 of the Civil Procedure Rules regarding verifying affidavits.
Ratio Decidendi
The court found that the District Land Tribunal did not have jurisdiction to determine disputes concerning registered land. Consequently, any decision made by the Tribunal regarding the subject land was null and void and could not form the basis for a plea of res judicata. The previous suit, having been determined by a body lacking jurisdiction, did not preclude the current suit from being heard. The court also held that the issue of whether the plaintiff had paid costs in previous suits was not a pure point of law and therefore could not be raised as a preliminary objection. The alleged defect in the verifying affidavit was not pursued by counsel and, upon review, the court found the...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Suit 108 of 2005
JOHN KIPTOO SIREN ………………………………...………………………… PLAINTIFF
VERSUS
CHALRES K. OMBOI …………………...………………………………… 1ST DEFENDANT
JEREMIAH ONTIRI ………………………....………...…………………… 2ND DEFENDANT
THE CHAIRMAN ITEN LAND DISPUTES TRIBUNAL
THROUGH THE ATTORNEY GENERAL ….........................……………… 3RD DEFENDANT
R U L I N G
Following several attempts by John Kiptoo Siren to restrain and evict Charles Omboi and Jeremiah Ontiri from a portion of ¼ of an acre of ELGEYO MARAKWET/IRONG/ITEN/520 (‘the subject land’), which the former claims is his land, Siren has instituted this suit which he seeks an order to declare that he is the absolute owner of the said land and in which case the two should be ordered to vacate the same and that they be restrained from interfering with the land in any manner.
Charles Omboi and Jeremiah Ontiri who appear in this suit as the 1st and 2nd defendants have raised this preliminary objection in which they claim that not only is the suit against them res judicata but that it offends the provisions of Order VII rule 1 of the Civil Procedure Rules and that the plaintiff should not be heard until he settles their costs in the previous suits and which were assessed at Shs. 108,240/=. It is also their contention that otherwise the suit is incompetent, defective and an abuse of the process of the Court.
I have taken the submissions of both very able counsel, and I have also taken cognisance of the depositions by both sides as well as the annexture to the supporting and replying affidavits. Mr. Kuloba, the defendants’ learned counsel urges this Court to find that the suit is res judicata and that it cannot lie, in support of which he has had annexed to the replying affidavit a copy of the plaint and ruling in a suit, which Siren had filed against these two at Iten, namely Iten RMCC No. 59 of 2003 in which the learned trial Magistrate had found that “the matter directly and substantially in issue in this suit were heard and finally decided by the Tribunal.” He also found that “in fact the respondent (Siren) never appealed against the decision of the Tribunal No. 2/2003. The suit therefore being res judicata does not disclose any reasonable cause of action”. He then proceeded to dismiss the suit with costs to the two.
Faced with that type of my ruling, it is now my duty to establish whether this preliminary objection can be sustained on the grounds that this suit is res judicata.
It is common ground that the subject land is registered land. It is trite law that District Land Tribunals shall not have the jurisdiction to hear and determine matters pertaining to registered land. Given that position in law, I am unable to understand how the decision which was made by the Tribunal and which the learned trial Magistrate at Iten seeks to support, could be deemed as an enforceable decision. In my humble opinion, such a decision would obviously be null and void and it cannot be the basis for finding that the suit was “deliberated upon and fully determined”. The issue of res judicata cannot therefore arise; and the preliminary objection cannot be sustained on that ground.
Though the two have taken issue with the verifying affidavit, which in their opinion, offends Order VII rule 1 of the Civil Procedure Rules, Counsel did not address the issue and I can only assume that he abandoned it. I have nevertheless looked at the relevant section of the law and the pleadings herein and I am convinced that the pleadings comply with the said legal requirements.
I have otherwise looked at the other grounds on which this preliminary objection is based and in my view the issue of whether fees in earlier suits was paid is not a matter of law. It cannot be raised in a preliminary objection, which can only be raised on pure matters of law.
I do in the circumstances find that the preliminary objection cannot be sustained. It is hereby dismissed.
Costs shall however be in the cause.
Dated and delivered at Eldoret this 2nd day of May 2006.
JEANNE GACHECHE
Judge
Delivered in the presence of:
Mr. Kathili for the plaintiff, Mr. Kutwa for the 1st and 2nd defendant, No appearance for 3rd defendant.