[2019] KEELC 2506 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC PETITION CASE NO. 15 OF 2018

JULIUS LUKAMASIA..................................................................PETITIONER

VERSUS

ABDALLA SULEIMAN DARAJA

SHABAN MUSUMBA HAJI....................................................RESPONDENTS

RULING

The respondents filed a preliminary objection on point of law. The petitioner filed the petition herein dated 25/9/2018 seeking for various reliefs. They, filed a notice of motion dated 25/9/2018 seeking for conservatory orders in respect of L.P. KAKAMEGA/LUGARI/2808. The respondent submitted that the application and the petition are res judicata, in view of the judgments delivered in KAKAMEGA HSUCC. NO. 759 OF 1994 delivered on 28/7/2016 and KAKAMEGA ELC NO. 217 OF 2016. That the subject land parcel No. KAKAMEGA/LUGARI/2808 does not exist. That the court will lack jurisdiction to entertain the petition and the application hence the application and the petition should be dismissed and/or struck out with costs to the respondents.

The respondents submitted that the petitioner illegally sub divided the deceased’s parcel of land Kakamega/Lugari/898 into various portions and allocated himself No. Kakamega/Lugari/2808 and in the order dated 22/3/2018, in KAKAMEGA HSUCC 759 OF 1994, Justice R.N. Sitati gave orders cancelling the title No. KAKAMEGA/LUGARI/2808. Therefore the subject land parcel does not exist as at the time of filing suit. The court cannot make orders or deliberate on a subject land parcel which does not exists. Orders are issued or made in respect of a subject land parcel which exist. In this particular matter there is no land parcel in existence and in particular L.P. Kakamega/Lugari/2808. In reference to the certificate of official search dated 25/9/2018, annexed No. SMH7 entry No. 5 shows that on 18/9/2018 a court order cancelled L.P. KAKAMEGA/LUGARI/2808. Therefore the court will lack the necessary jurisdiction to make any order in respect of a nonexistant parcel of land.

On the 2nd limb of the preliminary objection they submitted, the matter herein is res judicata. This honourable court has already made a decision in Kakamega ELC No. 217 of 2016. Julius Lukamasia VS. Abdalla S. Daraja and Kassim O. Daraja where on 15/1/2018, Justice N. Matheka dismissed the petitioner’s claim with costs. Annexed and marked SMH8 is a copy of the order from this honourable court.

Secondly in Kakamega HSUCC 759 of 1994. Justice R. Sitati on 28/7/2016 made a ruling in respect of the petitioners claim. Paragraph 5-10 of the said ruling, clearly states that the petitioner, who was the interested party in the said suit and/or proceedings had no claim whatsoever on the estate of the deceased Suleiman Daraja Osore and the petitioner/interested party’s protest was dismissed with costs. When one refers to the replying affidavit annexed marked SMH4 from the above explanations, it is clear that the matter before the court now has been previously heard and determined both by Justice N. Matheka in the ELC division and Justice R. Sitati in the succession front. Therefore the court has pronounced itself on the issue, thus the matter is res judicata. The court cannot go back to the issues that already a decision has been made to open them a fresh and subjected them to fresh hearing and determination. The respondents prays that the court do make a finding that the application and the petition, are res judicata, the subject land parcel Kakamega/Lugari/2808 does not exist hence court cannot make orders in respect of a non-existent parcel of land, hence has no jurisdiction to do that. Therefore to save the court from the res judicata issues, the best the court can do is to return a verdict of finding the preliminary objection meritorious uphold it, and strike out the application together with the petition with costs to the respondent so as to bring litigation by the petitioner to an end and it will allow the respondents to peacefully enjoy the fruits of judgment in the quoted decisions. The petitioner did not prefer any appeal out of the said judgments.

The petitioner submitted that the issue of res judicata cannot be raised when the facts are in dispute as in this case. The court needs to go into the merit of this care. The finding in the Succession case was that the petitioner did not buy land from the deceased but from the 1st defendant and he should pursue him. The petitioner was an interested party in the succession suit. In the case of the KAKAMEGA ELC NO. 217 OF 2016 petitioner applied for injunction and it was dismissed hence it was not heard on merit. On the issue of the land now not existing the petitioner is at liberty to amend his pleadings. He relied on the case of M.W.K VS A.M.W (2016) eKLR.

This court has considered the preliminary objection and the submissions herein. A Preliminary Objection, as stated in the case of Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) E.A 696,

“……… consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit”

In the same case, Sir Charles Newbold said:

“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion”.

J.B. Ojwang, J (as he then was) in the case of Oraro vs. Mbajja [2005] e KLR had the following to state regarding a ‘Preliminary Objection’.

“I think the principle is abundantly clear. A “preliminary objection”, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement …….. that, “where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”.

The issue as to whether or not this suit is res judicata or sub judice is therefore properly raised as a Preliminary Objection. 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.”

The respondent submitted, the matter herein is res judicata because this honourable court has already made a decision in Kakamega ELC No. 217 of 2016. Julius Lukamasia VS. Abdalla S. Daraja and Kassim O. Daraja where on 15/1/2018, Justice N. Matheka dismissed the petitioner’s claim with costs. Annexed and marked SMH8 is a copy of the order from this honourable court. Secondly in Kakamega HSUCC 759 of 1994. Justice R. Sitati on 28/7/2016 made a ruling in respect of the petitioners claim. Paragraph 5-10 of the said ruling, clearly states that the petitioner, who was the interested party in the said suit and/or proceedings had no claim whatsoever on the estate of the deceased Suleiman Daraja Osore and the petitioner/interested party’s protest was dismissed with costs. I have perused the rulings of these courts and find that in Julius Lukamasia VS. Abdalla S. Daraja and Kassim O. Daraja Kakamega ELC No. 217 of 2016 where on 15/1/2018 the same was dismissed, the parties are the same and so is the subject matter. The same was dismissed and it was upto the petitioner to appeal against that decision if they felt aggrieved. The petitioner cannot abandon that matter and now file afresh suit by was of a petition. Paragraph g of the petition on page 55 is asking this court to revoke and or set aside the grant of letters of administration intestate made to the 2nd respondent on the 27th February 2013 and confirmed on 28th July 2016. This court has no powers and/or jurisdiction to do such a thing in the first place. This petition is not only misconceived but also res judicata Kakamega ELC No. 217 of 2016. I find the preliminary objection has merit and I uphold the same. This petition is struck off with costs to the respondent.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 4TH JULY 2019.

N.A. MATHEKA

JUDGE