[2022] KEHC 1813 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT

MOMBASA LAW COURTS

CIVIL SUIT NO. 67 OF 2020 (O.S)

1. KAZUNGU MRAMBA

2. ELIZABETH KAMALA

3. MAGDALINE NYAMBURA &

43 OTHERS…………………………………PLAINTIFFS/APPLICANTS

- VERSUS –

1. ST. ELIZABETH ACADEMY-KAREN LIMITED

2. ANNE WANJIKU MUNENE

3. AYUB KIANJA………………..…….DEFENDANTS/RESPONDENTS

RULING

I.Introduction

1. The 1st, 2nd and 3rd Defendants/Respondents herein raised a Notice of Preliminary Objection dated 19th July, 2021 and filed in Court on 21st July 2021. The said objection was founded on three (3) main grounds. Firstly, that the Notice of Motion application dated 25th February 2021, which was Amended on 14th July, 2021 and filed on 15th July, 2021 by the Plaintiffs/Applicants herein was “Res judicata” offending the dint of the provision of Section 7 of the Civil Procedure Act, Cap. 21. They argued that the said application was improperly instituted taking that the Plaintiffs/Applicants herein had filed a similar application dated 8th June, 2020 which sought for injunction orders in the Civil suit of ELC (Mombasa) No. 24 of 2018 against the 1st, 2nd and 3rd Defendants/Respondents herein in relation to all that property known as Land Reference Plot No. 395/11/MN Utange, the suit property. According to them, the said application was not only directly and substantially in issue in the said suit but was finally determined pursuant to a ruling delivered by this Honorable Court on 29th January 2019.

2. Secondly, that the said application dated 8th June 2020 was“Sub judice” as it flouted the provision of Section 6 of the Civil Procedure Act. Cap 21 in respect of the pending of a suit in ELC (Mombasa) No. 24 of 2018 in respect to the suit property.

Thirdly, that the application dated 8th June 2020 which seeks for title by way of land adverse possession was allegedly premature having been made before the lapse of the statutory twelve (12) years as provided for under the provisions of Sections 37 and 38 of the Limitation of Actions Act taking that time started running on 24th March, 2010 when the 1st Respondent got registered as the legal proprietor of the subject suit property.

At this early juncture, I must sincerely highly commend all the Learned Counsels, but in particular, Mr. Gitonga of the Law firm of Messrs. Gitonga, Kalawa & Company Advocates for the 1st, 2nd and 3rd Defendants/Respondents herein for their elaborate, meticulous and articulate presentation and submissions made on this matter so far.

The 1st, 2nd and 3rd Defendants/Respondents averred that the suit by the Plaintiffs/Applicants was frivolous, vexatious and an abuse of the court process and being unsustainable therefore it ought to be struck off with costs to the Defendants/Respondents.

II.Submissions

A. The 1st, 2nd and 3rd Defendants/Respondent’s Written

Submissions

3. On 7th October 2021, the 1st, 2nd and 3rd Defendants/Respondents rough their Advocates, the law firm of Messrs. Gitonga, Kalawa & Company Advocates for the 1st, 2nd and 3rd Defendants/Respondents herein filed their written submissions dated 1st October, 2021 and a list of authorities to boot. The Learned Counsel, Mr. Gitonga eloquently submitted that the doctrine of Res Judicata was premised on the public policy to wit that dictated that litigation ought to come to an end. He rightfully stated that it was codified under the provision of Section 7 of the Civil Procedure Act. Cap. 21. He referred Court to a useful extract from the book entitled:- “Judicial Hints on Civil Procedure (Law Africa, 2005) authored by Justice (Rtd) Richard Kuloba which expounds on the necessity of the doctrine to wit:-

“There are at least three broad social desirable ends served by the doctrine of Res Judicata.

First, the principle protects litigants from harassment through re – litigation of the same claim or issue;

Second, it helps to preserve the prestige of Courts by avoiding inconsistent Judgements. That is to say, having the same issue decided in different ways can only undermine the general public’s esteem for legal order.

Third, it saves the time of courts which could be spent on repletion of litigation. Some people must be stopped from re - litigating in matters several times. Losing Plaintiffs should stop additional suits on the same cause of action with the hope of finding a court which will decide in their favour. Wining Plaintiffs should not re – litigate a second time with the hope to get larger awards. Courts are too overloaded to be swamped with re – litigation of questionable value…..”

4. His contention was that in the instant case, a breach of the doctrine of Res judicata had been established herein with relation to “ELC (Mombasa) No. 28 of 2018 - Said Musa Mitsanze & 2 others – Versus - Yusuafali Ismailee Kivanje, St Elizabeth Academy Karen & Others (2019) eKLR”. On 29th January 2019, the court ruled in the ELC (Mombasa) No. 28 of 2018 and finally determined all the questions relating to the issue of ownership and injunction in respect to the parcel of land known as Land Reference Numbers 395/II/MN. The issues raised in ELC (Mombasa) No. 28 of 2018 were on the ownership of the suit land, while the suit herein is on adverse possession. Hence, the Plaintiffs/Applicants litigating on the same title. The Learned Counsel submitted that the issues herein are directly and substantially related to those in the previous suit and subject matter.

5. The Learned Counsel maintained that some of the Plaintiffs/Applicants were claiming the suit land through their representatives and some of the Plaintiffs/Applicants herein were parties to the previous suit, i.e. in ELC No. 24 of 2018 the Plaintiffs/Applicants were representatives of the others which is similar to the present suit where the Plaintiffs/Applicants were representatives of the others. Further to that the documents relied upon by the 1st, 2nd and 3rd Defendants/Respondents in the previous suit were the same documents that the Plaintiffs/Applicants had annexed in their claim herein.

6. On the doctrine of Sub judice, the Learned Counsel submitted that was based upon the need to avoid parallel proceedings between the same parties and/or same subject matter. It was codified under the provisions of Section 6 of the Civil Procedure Act. Cap. 21. The two principles are tied together.

7. In support of their submission they relied on several authorities being the (Chuka ELC No. 9 of 2019 OS), eKLR; Henderson – Versus – Henderson (1843 – 60) ALL ER 378; Thorne – Versus – J Usher Jones (1913 – 14) 5 KLR 157; Mburu Kinyua – Versus – Gachini Tuti (1976 – 80) 1KLR, 790; Nishith Yogendra Patel – Versus – pascal Mireille Baksh & Another (2009), eKLR; Kenya Planters Co – operative Union Limited – Versus – Kenya Co - operative Coffee Millers Limited & Ano. (2016) eKLR, Republic – Versus – Paul Kihara, Attorney General & 2 Others Ex parte law Society of Kenya (2020) eKLR.

B. The Plaintiff’s Written Submissions

8. On 21st October 2020, the law firm of Messrs. Kedeki & Company Advocates for the Plaintiffs/Applicants filed their written submissions dated even date. The learned Counsel, M/s Waithera holding brief for Mr. Kedeki Advocate for the Plaintiffs/Applicants submitted that ELC 24 of 2018 was not in relation to a claim on adverse possession but a suit seeking injunctive orders and the suit is yet to be heard and determined. The Learned Counsel argued that the suit herein was distinct and different from the previous suit in terms of the issues for determination. The Learned Counsel submitted that the doctrine of Sub - judice did not apply on these issues on the ground that in the previous suit the injunction were sought over 394/11/MN and 395/11/MN while the present suit had only dealt with 395/11/MN. To buttress their case they relied on several decisions of HCCC (Malindi) No. 20 of 2015, Christopher Orina Kenyari T/A Kenyari & Associates Advocates – Versus – Salama Bench hotel Limited & Others, IEBC – versus - Maina Kiai & 5 Others Nbi, Civil Appeal No. 105 of 2017, eKLR; Co – Operative Merchant bank Limited – Versus – George Fredrick Wekesa, Civil Appeal No. 54 of 1999 and Niazsons (K) Limited – Versus – China Road and bridges Corporation (K) Limited (2001) EA 502 (CAK).

III.Analysis and Determination

9. I have considered the objection raised by the 1st, 2nd and 3rd Defendants/Respondents raised through a Notice of preliminary objection dated 19th July, 2021 being against the notice of Motion Application dated 25th February 2021 and amended on 14th July, 2021, the written submissions, the cited authorities and the relevant by the parties and the relevant provisions of the law.

10. The objection is mainly on the ground that it is res judicata to the application dated 5th February 2018 in Mombasa ELC 28 of 2018, and that the suit herein is sub judice to ELC 28 of 2018 offending both the provisions of Sections 6 and 7 of the Civil procedure Act. Cap. 21.

11. In order to arrive at an informed, fair and just decision on the matter, the Honorable Court has framed the following three (3) issues for determination.

(a) Whether the Preliminary Objection, vide a Notice of Preliminary Objection dated 19th July, 2021 by the 1st, 2nd and 3rd Defendants/Respondents herein meets the well established threshold of an objection as set out in law and precedents.

(b) Whether this suit instituted by the Plaintiffs/Applicants herein and as objected by the 1st, 2nd and 3rd Defendants/Respondents herein is Res Judicata and Sub Judice offending the provisions of Sections 6 and 7 of the Civil procedure Act. Cap 21.

(c) Who will meet the costs of the Preliminary Objection by the 1st, 2nd and 3rd Defendants/Respondents.

ISSUE No. a). Whether the Preliminary Objection, vide a Notice of Preliminary Objection dated 19th July, 2021 by the1st, 2nd and 3rdDefendants/Respondents herein meets the well-established threshold of an objection as set out in law and precedents.

12. According to the Black Law Dictionary a Preliminary Objection is defined as being:

“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”

The above legal preposition has been made graphically clear in the now famous case of Mukisa Biscuits Manufacturing Co. Ltd – Versus- West End Distributors Limited. [1969] E.A. 696. Where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure points of law. The Learned Judge then held that:-

“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurer 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 has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”

13. Further, I wish to cite the case of Attorney General & Another –Versus- Andrew Mwaura Githinji & another [2016] eKLR:- as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia:-

i. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.

ii. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and

iii. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.

It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. Certainly, the issues raised by the 1st, 2nd and 3rd Defendants/Respondents are serious and pure issues of law which this court is duty bound to critically venture to be heard and determined prior to them being set down the case for full trial on its own merit. The issues are not fanciful nor remote. Indeed, under this sub-heading on the one hand, while the court fully concurs with the position taken by Defendants/Respondents on to raise and defend the objection on law.

14. For these reasons, therefore, I find that the objection raised on the doctrine of “Res Judicata and Sub Judice” by the 1st, 2nd and 3rd Defendants/Respondents were properly filed hereof as they constitute to matters akin to be determined at the preliminary level before embarking on the hearing of the case on its own merit in conformity to Mukisa Biscuits Manufacturing Co. Limited (Supra). Should either of these is proved, it has the capability of disposing the entire application to avoid unnecessarily increasing costs and confusing issues. Applying the above test, the matters raised by the 1st, 2nd and 3rd Defendants/Respondent in their preliminary question are clearly pure points of law that I shall proceed to consider them and determine them accordingly

ISSUE b). Whether this suit instituted by the Plaintiffs/Applicants herein and as objected by the 1st, 2nd and 3rd Defendants/Respondents herein is Res Judicata and Sub Judice offending the provisions of Sections 6 and 7 of the Civil procedure Act. Cap 21.

15. Under this sub heading, the doctrine of Res judicata is provided for under Section 7 of the Civil Procedure Act, Cap. 21 with the object of baring multiplicity of suits and guarantee finality of litigation. It states:-

“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.

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.

Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

16. The Doctrine of Res judicata anticipates five conditions that need to coexist in order to bar a subsequent suit, which are:-

i. The matter is directly and substantially in the subsequent suit must have been directly and substantially in issue in the former suit;

ii. The former suit must have been between the same parties or proxies claiming under them;

iii. The parties must have litigated under the same title in the former suit;

iv. The former suit was determined by a court competent to try such subsequent suit, and

v. The matter in issue must have been heard and finally decided by such court.

17. For the above conditions to be established the party pleading Res judicata ought to provide court with the pleadings in the former suit. In this case, the respondents ought to have provided court with the pleadings in ELC (Mombasa) 28 of 2018 to enable court make a determination whether the said conditions exists. The 1st, 2nd and 3rd Defendants/Respondents ought to provide the court with the specific particulars to support the doctrine of Res judicata. The provisions of Section 107 of the Evidence Act is clear on the burden of proof, the Respondent ought to provide full disclosure of particulars, they rely on. I take notice that the 1st, 2nd and 3rd Defendants/Respondents have impressively , extensively and elaborately submitted on doctrine of res judicata in their submissions and even explained to court the five conditions as analyzed above, I must admit but come short on bringing out how it applies to the facts of this suit.

18. Despite having perused the entire file, unfortunately, I have not come across any single pleading from the filed Civil suit of ELC (Mombasa) 28 of 2018 making any nexus and or pertaining to the legal conclusion or finding that the doctrine of res judicata or sub judice applies or offends of the provisions of Sections 6 and 7 of the Civil procedure Act, Cap. 21.

19. On the contrary, the submissions filed herein refer to the former suit, however those statements are merely circumstantial and have not been supported by the pleadings that have been extensively referred to. In the absence of the pleadings of ELC (Mombasa) 28 of 2018, this Honorable court is handicapped and cannot logically proceed to make a conclusive determination on either the doctrine of Res judicata or sub judice in relation to this suit. For that very fundamental reason the objection by the 1st, 2nd and 3rd Defendants/Respondents fails to succeed accordingly.

ISSUE C). Who will meet the costs of the Preliminary Objection by the 1st, 2nd and 3rd Defendants/Respondents.

The Black Law Dictionary defines cost to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”

20. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The events in this case are the result of the case whereby the Plaintiffs/Applicants herein have succeeded in their case. For that very fundamental reason, therefore, the costs of this suit will be made to the Plaintiffs/Applicants herein to be borne by the 1st, 2nd and 3rd d Defendants/Respondents herein.

IV.Determination

21. Consequently, and based on the above detailed analysis on facts and law, the Notice of Preliminary Objection dated 19th July 2021 is found to lack merit and therefore be and is hereby dismissed with costs to the Plaintiffs/Applicants herein. Specifically, I direct:-

a) THAT the Notice of Preliminary Objection dated 19th July, 2021 by the 1st, 2nd and 3rd Defendants/Respondents herein be and is hereby dismissed with Costs.

b) THAT the Notice of Motion application dated 25th February, 2021 and Amended on 14th July, 2021 be disposed off by way of written submissions as follows:-

i. The Defendants/Respondents herein are granted 14 days leave to file and Serve Replying Affidavits.

ii. The Plaintiffs/Applicants are granted 14 days leave upon service to file and serve Written Submissions and further affidavit if necessary on issues of law.

iii. The 1st, 2nd and 3rd Defendant/Respondents herein are granted 7 days to file and serve written Submissions.

c) THAT the matter be mentioned on 28th April, 2022 for direction which shall include taking a ruling date of the application.

22. IT IS ORDERED ACCORDINGLY.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 2ND MARCH 2022.

HON. JUSTICE L. L. NAIKUNI (JUDGE)

ENVIROMNENT AND LAND COURT

MOMBASA

In the presence of:-

M/s. Waithera holding brief for Mr. Kedeki Advocate for the Plaintiffs/ Applicants.

Mr. Gitonga Advocate for the Defendants/Respondents.