[2022] KEELC 2734 (KLR)

Kandie & another v Khamisi (Environment & Land Case 98 of 2020) [2022] KEELC 2734 (KLR) (28 July 2022) (Ruling)

Neutral citation: [2022] KEELC 2734 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 98 of 2020

NA Matheka, J

July 28, 2022

Between

Ambrose Kipsoi Kandie

1st Plaintiff

Pius Kibor Chelagat

2nd Plaintiff

and

Mohamed Hamed Khamisi

Defendant

Ruling

1. The Defendant raised a preliminary objection that this matter is res judicata having been dealt with in CMCC NO. 1199 OF 2014 MOMBASA (Formally ELC NO. 301 of 2012) involving the same Parties, same Property and same issues and the said matter is now concluded hence this Suit should be struck out with costs to the Defendant for being res judicata.

2. The Plaintiff submitted that they filed a suit ELC No. 301 of 2012 which was transferred to the lower court as CMCC No. 1199 of 2014 which was dismissed for want of prosecution on 21st July 2015. They went for review which was equally dismissed. Therefore this matter was is not res judicata as it was never heard and determined.

3. This court has considered the preliminary objection, submissions and authorities cited. The doctrine of res judicata is set out in the Civil Procedure Act at Section 7 as follows:''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 can 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.”

4. The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms:''Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation.(2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’

6. Therefore, for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a Court of competent jurisdiction. In the case of Henderson v Henderson [1843-60] All ER 378, the court held that;''…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”

7. It follows then that a Court will apply the doctrine in instances where a party raises issues in a subsequent suit, wherein he/she ought to have raised the issues in the previous suit as between the same parties.

8. In that respect, the Court of Appeal held in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR, that:For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a)The suit or issue was directly and substantially in issue in the former suit.b)That former suit was between the same parties or parties under whom they or any of them claim.c)Those parties were litigating under the same title.d)The issue was heard and finally determined in the former suit.e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

9. The Court went on to state on the role of the doctrine:''The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

10. I have perused the pleadings in CMCC No. 1199 of 2014. Indeed, I find that the subject matter is the same and the parties are the same. In applying the stated law to the facts before me, it is clear that the Plaintiffs had an option of appeal but chose to file a fresh suit. In my view, by filing this suit, the Plaintiffs are trying to start to litigate and open up the matter afresh. I find that this suit is res judicata and an abuse of the court process. The application has merit and hence upheld. I therefore strike out the Plaintiffs’ case with costs.It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 28TH DAY OF JULY 2022. N.A. MATHEKAJUDGE