[2021] KEELC 4611 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 229 OF 2018

KILIFI SOUTH EAST COOPERATIVE SOCIETY............PLAINTIFF

VERSUS

KAHINDI NYAFULA & 144 OTHERS..........................DEFENDANTS

RULING

1. By this Notice of Motion application dated 4th March 2019 and filed herein on 11th March 2019, the 145 Defendants herein urge the Court to be pleased to strike out with costs the Plaintiff’s suit filed herein on 20th December 2018 for being scandalous, frivolous, vexatious, prejudicial, embarrassing, filed in abuse of the Court process and or for not disclosing any reasonable cause of action.

2. The application which is supported by an affidavit sworn by the 1st Defendant Kahindi Nyafula is based on the grounds: -

i) That the Plaintiff’s suit is res judicata and thus offensive to the provisions of Section 7 of the Civil Procedure Act as the Plaintiff had filed a similar suit beingKilifi SRMCC No. 399 of 2007seeking for similar reliefs and or remedies. The said suit was heard on merit and was on 19th September 2012 dismissed in favour of the Defendants;

ii) That the Kilifi suit involved the same parcels of land which are the subject of the dispute herein;

iii) That upon delivery of Judgment in the Kilifi suit, the Plaintiff filedMalindi ELC Judicial Review Application No. 3 of 2013which was struck out with costs on 8th May 2014. The Plaintiff then filed a Notice of Appeal which was not prosecuted and was instead dismissed for want of prosecution on 21st June 2018.

iv) That the suit is also sub-judice and thus offensive to Section 7 of the Civil Procedure Act as there are ten pending suits in Mombasa filed in October 2018 involving the same subject matter and the same parties herein;

v) That the Kilifi suit was filed against the 1st to 5th Defendants herein for and on behalf of their relatives, kinsmen, servants, agents and/or family members who are the other Defendants herein. There was an admission in the said suit premise in the year 2004 and this suit is therefore time-barred and does not disclose any reasonable cause of action.

3. The application is opposed by the Kilifi South East Farmers Ltd

Co-operative Society (the Plaintiff). In a Replying Affidavit sworn and filed herein on 6th May 2019 by its Secretary Daniel Runya Ngamba, the Society avers that it has filed an amended Plaint and that as it stands now, this is a fresh suit and the parties may have participated in the suit filed at Kilifi are nolonger parties to this suit.

4. The Plaintiff further avers that the law allows a party to amend her pleadings at any stage of the proceedings and that the amended suit as now filed is against people who were not parties in the former suit and is therefore not res-judicata.

5. The Plaintiff asserts that the suit herein aims to end an injustice caused to the Plaintiff by recovery of its land and this has been ongoing for a long time and the issue of adverse possession cannot arise. The Plaintiff further avers that it is in the interest of justice that the matter herein be heard and finalized once and for all and that hence the Plaintiff ought to be given a chance to ventilate her issues on merit and a decision be made once and for all.

6. The Plaintiff further avers that if it were true there are pending cases, then the Court has inherent jurisdiction to order that all the matters pending be heard together or be consolidated but striking out the suit without a fair trial would amount to a draconian action contrary to the primary objective of the Courts to bring disputes to an end on merit.

7. I have perused and considered the Defendants’ application and the response thereto by the Plaintiff Co-operative Society. I have also had occasion to consider the rival submissions as placed before me by the Learned Advocates for the parties.

8. The Plaintiff filed this suit against the 145 Defendants on 20th December 2018 seeking orders set out as follows: -

1. An order of eviction (to issue) against the Defendants, their cronies, families and/or licencees from the Plaintiffs land consequently and (sic) an order of permanent injunction to issue restraining them from trespassing, encroaching, remaining in or in any way or manner by themselves or whosoever, interfering with the possession and enjoyment of the Plaintiff of her portions of land.

2. Cost of this suit with interest.

9. Those prayers arise from the Plaintiffs contention at paragraph 3 of the Plaint that at all times material to this suit, the Plaintiff was the registered owner and proprietor of all Portions of land known as Plot No. Group 11/9 Mavueni LT. Folio 75 File 3048, Group 11/10 Mavueni LT. 16 Folio 87, File 3049, Group 11/24 Mavueni LT. 20 Folio 315 File 3232, Group 11/26 Mavueni LT 16 Folio 172 File 3056, Group 11/27 Mavueni LT. 20 Folio 183 File 3221, Group 11/28 Mavueni LT 20 Folio 231 File 3225, Group 11/29 Mavueni LT 20 Folio 207 File 3223, LT 20 Folio 231/22 File 3225 LT 20 Folio 207/22 File 3223, LT 16 Folio 87/11 File 3049, LT 16 Folio 172/22 File 3056, LT 16 Folio 122/22 File 3051, LT 20 Folio 315/10 File 3232, LT 16 Folio 183/10 File 3057, LT 16 Folio 75/10 File 3048, LT 19 Folio 244/22 File 3185 and LT 20 Folio 183/20 3221.

10. The Plaintiff contends that on diverse dates from the year 2007, the Defendants invaded the land and forcibly and without the Plaintiff’s consent, authority or license, spontaneously and in an unplanned manner occupied different portions of the suitland.

11. At paragraphs 6, 7 and 11 of the Plaint, the Plaintiff avers as follows: -

“6. The Plaintiff avers that she has in many times attempted to remove the Defendants from the portions they occupy but has met resistance from the Defendants.

7. The Plaintiff avers that she even filed a suit for the eviction of the Defendants inKilifi Vide Case Number SRMCC No. 399 of 2007; Kilifi South East Farmers Co-operative Society –vs- Kahindi Nyafula and Othersbut which was never heard on merits but collapsed and/or was struck out on a technicality that the suit was filed in a Court that had no jurisdiction to hear the suit.

11. There has been many attempts and deliberations before various platforms in an attempt to have the Defendant removed from the Plaintiff’s land as well as a suit between the parties as disclosed supra beingKilifi SRMCC No. 399 of 2007but which was struck out on a technicality and therefore does not bar the filing of the present suit andJudicial Review No. 3 of 2013(JR) at Malindi filed by the Defendants which was struck out as it was filed out of time.”

12. On that account, the Plaintiff avers that the Defendants have no right or claim over the subject portions of land listed at paragraph 3 of the Plaint and urges the Court to have them evicted therefrom forthwith and unconditionally.

13. But the Defendants would hear none of it. In their application before me they urge the Court to strike out the Plaintiff’s suit for inter alia being res judicata the said Kilifi SRMCC No. 399 of 2007 in that the same involves the same parties and relates to the ownership of the same suit properties.

14. The Plaintiff has responded to the application with the answer that they have since amended the Plaint and that those who were parties in Kilifi SRMCC No. 399 of 2007 have been removed and are nolonger parties in this suit.

15. A perusal of the record herein reveals that a month after the Defendants’ application was filed, the Plaintiff proceeded to Court on 11th April 2019 and filed the so-called Amended Plaint dated the same day. That amendment now purports to cancel the names of the 1st to 5th Defendants herein from the List of the Defendants. In addition, it seeks to obliterate any reference to the said Kilifi SRMCC No. 399 of 2007 by cancelling the hitherto paragraphs 7 and 11 of the Plaint as cited hereinabove and instead inserting a new paragraph 11 (a) in which the Plaintiff now states that: -

“11. a) There has never been any suit between the two parties herein in any Court in regard to the subject matter herein.”

16. With respect to the Plaintiff, I think the document titled Amended Plaint was filed in abuse of the Court process for the sole purpose of defeating the Defendant’s application. From the record, it was clear that the initial Plaint dated 20th December 2018 was served upon the Defendants on 31st January 2019. That much is clear from an Affidavit of Service of one Peter Ogweno Omogi, a Court Process Server filed herein on 6th March 2019.

17. It is also clear that on 4th February 2019, Messrs Kenga & Company, the Advocates for the Defendants filed and served Messrs Mwaure & Mwaure Waihiga, the Advocates for the Plaintiff with their Notice of Appointment. That Law Firm further filed a Statement of Defence on behalf of the Defendants on 28th February 2019, almost one and a half month before the Plaintiff filed the Amended Plaint.

18. While a party is allowed under Order 8 Rule 1(1) of the Civil Procedure Rules to amend any of his pleadings at any time before the pleadings are closed, such amendments can only be done with the leave of the Court once the pleadings close. Under Order 2 Rule 13 of the Civil Procedure Rules, pleadings close 14 days after service of the reply or defence to Counterclaim, or if neither is served, some 14 days after service of the Defence. The amendments purported to have been made herein were not only done out of time but purported to change and correct the names of the Defendants and hence required the leave of the Court and a determination on the issue of costs before the same could take effect.

19. Be that as it may, the doctrine of res judicata is captured under Section 7 of the Civil Procedure Act as follows: -

“No Court shall try any suit 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.”

20. From the material placed before me, the Plaintiff has not denied that it filed a suit in the Kilifi Magistrates Court being Kilifi SRMCC No. 399 of 2007 in which they sought eviction orders against the 1st to 5th Defendants for and on behalf of themselves, their kinsmen, relatives, servants and/or agents.

21. While the Plaintiff purported that the said suit was struck out on a technicality, it is clear from the Court proceedings annexed to the 1st Defendant’s Supporting Affidavit that the said suit was heard on merit and that Judgment was delivered thereon by the Honourable Mrs A.M Obura, PM on 19th September 2012.

22. In her said Judgment, the Learned Magistrate determined that the Plaintiffs had not armed themselves with the requisite authority to institute the suit. It was her further finding that the Plaintiffs witnesses failed to state conclusively and on a balance of probability which Defendant was living on which portion of the land. The Court noted on that account that there were over 200 people on the 180. 1-acre piece of land many of whom had not been included in the suit and declined to make a blanket order against them by dismissing the Plaintiff’s suit.

23. It was therefore clear that the Plaintiff was being less than candid in its claim that the said suit had been dismissed on a technicality on account of being filed in a Court without jurisdiction.

24. From their own prayers herein, it is further clear that even if the amendment to remove the 1st to 5th Defendants was to be allowed, the Plaintiff considers the remaining Defendants to be their (1st to 5th Defendants) cronies, families and/or licensees. It is also clear that the Plaintiff considers this case an effort to correct the errors made in the said Kilifi SRMCC No. 399 of 2007.

25. In their pleadings filed in the Kilifi Case, the Plaintiff avers at paragraphs 10, 12 and 13 of their Amended Plaint dated 14th May 2009 as follows: -

“10. The defendants are squatters, invaders, trespassers without any known rights and or interests capable of being registered under the Registration of Titles Act Cap 281 Laws of Kenya or under any known law.

11. The Plaintiff states that the Defendants have refused to vacate from the said suit plots No. 7 and 8 and all the said plots and the Plaintiff has been denied its free use of the suit property.

12. The Plaintiff further states that the Defendants have been since 2004 (sic) invaded and started constructing illegal structures on the suit property and harvesting coconut and mangoes and selling them for their own use.

13. The matter has been reported severally to the Police and Provincial Administration for amicable solution but the Defendants have been adamant and refused for no apparent or justifiable cause to vacate the suit plots.”

26. Given the admission by the Plaintiff that the Defendant have been on the suit property, since the year 2004, it was also clear to me that as at 20th December 2018 when this suit was filed, some 14 years had lapsed and the Plaintiff’s suit was therefore time-barred by dint of Section 7 of the Limitation of Actions Act, Cap 22 of the Laws of Kenya.

27. In the premises I am persuaded that I need not to go into any other issues herein and that there is merit in the Defendant’s Notice of Motion dated 4th March 2019. I allow the same and hereby strike out the Plaintiff’s suit with costs.

Dated, signed and delivered at Malindi this 29th day of January, 2021.

J.O. OLOLA

JUDGE