[2004] KEHC 124 (KLR)
The court held that the Kiambu Land Disputes Tribunal lacked jurisdiction to determine the ownership of the suit property as conferred by section 3(1) of the Land Disputes Tribunals Act. The High Court had previously quashed the Tribunal's award on this basis. Since the issue of ownership had not been determined by...
Source-derived case information.
- Citation
- [2004] KEHC 124 (KLR)
- Parties
- Plaintiff: Josphat Warui Mwangi; Plaintiff: Loise Wacheke Boro; Plaintiff: James Kimani Boro; Defendant: Mbugua Mwenja Kagiri; Defendant: Simon Kagiri Mbugua; Defendant: Felix Kimani Mbugua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed
- Legal Topics
- Res Judicata, Jurisdiction of Land Disputes Tribunal, Striking Out of Suit, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Warui Mwangi
Plaintiff
Loise Wacheke Boro
Plaintiff
James Kimani Boro
Plaintiff
Mbugua Mwenja Kagiri
Defendant
Simon Kagiri Mbugua
Defendant
Felix Kimani Mbugua
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the present suit is res judicata in light of previous proceedings before the Kiambu Land Disputes Tribunal and subsequent High Court orders.
- 2 Whether the Land Disputes Tribunal had jurisdiction to determine ownership of the suit property.
- 3 Whether the Plaintiffs are entitled to pursue their claim in the High Court.
Ratio Decidendi
The court held that the Kiambu Land Disputes Tribunal lacked jurisdiction to determine the ownership of the suit property as conferred by section 3(1) of the Land Disputes Tribunals Act. The High Court had previously quashed the Tribunal's award on this basis. Since the issue of ownership had not been determined by a competent tribunal or court, the doctrine of res judicata did not apply. Therefore, the Plaintiffs were entitled to pursue their claim in the High Court, and the application to strike out the suit was dismissed with costs to the Plaintiffs.
Court Disposition
application dismissed
Orders
- The Chamber Summons application dated and filed on the 24th March 2004 is dismissed with costs to the Plaintiffs/Respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 3 of 2002
JOSPHAT WARUI MWANGI.....................................................................................1st PLAINTIFF
LOISE WACHEKE BORO ……............................................……………………. 2ND PLAINTIFF
JAMES KIMANI BORO……….............................................……………………..3RD PLAINTIFF
versus
MBUGUA MWENJA KAGIRI……………........................................………… 1st DEFENDANT
SIMON KAGIRI MBUGUA ……………….....................................………… 2ND DEFENDANT
FELIX KIMANI MBUGUA ………………......................................………… 3RD DEFENDANT
RULING
The Second and Third Defendants/Applicants have moved this court by way of a Chamber Summons application dated and filed on the 24th March 2004 for orders that the suit herein be struck out. They rely on the grounds set out in the application which are supported by the affidavit of the 2nd Applicant also made on the 24th March 2004.
The Plaintiffs/Respondents have opposed the application upon the four grounds filed on the 28th April 2004.
In his submissions, Mr.Wambugu Kariuki, learned counsel for the Applicants contended that the issues and prayers contained in the Plaint dated the 11th March 2002 having already been canvassed fully before, and determined by, the Kiambu Land Disputes Tribunal leading to an award made on the 23rd March 2000, which award was subsequently quashed by an order of this court made on the 20th December by Ransley, CA (as His Lordship then was) in Miscellaneous Civil Application No. 975 of 2000, the suit herein is res judicata and therefore incompetent and should be struck out. Mr Kariuki referred me to what appears to be an undated Ruling of Githinji, J (as His Lordship then was) in James Ng'ang'a Kamau v Isaack Wairagu Kariuki and Another (HCCC No. 772 of 2001) (unreported) which for the reasons set out hereunder, and with respect, I find irrelevant to the application before me.
Mr. Nyang’au, learned counsel for the Respondents, argued that the issue of ownership of the suit property is yet to be determined as all this court had done in Misc. Civil App. No. 975 aforesaid was to quash the award of the said Tribunal which in purporting to make an award is a dispute as to the ownership of the suit property, had exceeded its jurisdiction as conferred by section 3(1) of the Land Disputes Tribunals Act [No 18 of 1990].
I would respectfully agree with Mr. Nyang'au and do so hold.
Accordingly, and as the Respondents are entitled to pursue their claim as instituted by Plaint filed on the 12th March 2002, it is ordered that the Chamber Summons application dated and filed on the 24th March 2004 be and is hereby dismissed with costs to the Plaintiffs/Respondents.
Dated and delivered at Nairobi this 22nd day of October 2004,
P. Kihara Kariuki
Ag. Judge