[2015] KEHC 1860 (KLR)

REPUBLIC OF KENYNA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELC APPEAL NO. 41 OF 2014

KORI GACHOKI …………………….………………………………… APPELLANT

VERSUS

KIRINYAGA COUNTY COUNCIL …….………….……DEFENDANT/RESPONDENT

JAMES MURIUKI KAMANYI ……..……….…… INTERESTED PARTY/APPLICANT

(BEING AN APPEAL FROM THE RULING DELIVERED ON 11TH NOVEMBER, 2009 BY HON. P.T. NDITIKA – S.R.M AT KERUGOYA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL CASE NO. 120 OF 2008)

JUDGMENT

The appeal herein arises from the ruling of Hon. P.T. NDITIKA Senior Resident Magistrate Kerugoya delivered on 11th November 2009 in KERUGOYA CIVIL CASE NO. 120 of 2008.

I have looked at the record herein and the brief facts are as follows:-

The 2nd Respondent herein (JAMES MURIUKI KAMANYI) filed KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE NO. 227 of 1995 seeking orders that the Appellant herein RICHARD KORI GACHOKI be evicted from plot number 324 Kagio Market and remove all his structures from the said plot. The Court ruled in favour of the 2nd Respondent and a decree to that effect was issued on 23rd September 1997. The 1st Respondent was not a party to that suit.

Thereafter in 2008, the Appellant filed KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL SUIT NO. 120 of 2008 against the 1st Respondent seeking the following orders:-

A declaration that the plot in possession of the Plaintiff is lawfully his.

Alternatively, refund of the cost of development and rates paid and that further, he be given another plot.

Interest of the above refunds plus costs and any other order the Court may deem fit.

That claim was premised on the pleadings that in 1992, the Appellant had purchased plot No. A82 Kagio with the full knowledge of the 1st Respondent who issued the Appellant with beacons certificate and copy of minutes indicating that the said plot had been transferred to the Appellant and on the strangle of that, the Appellant developed the plot by putting up a three (3) roomed residential house at a cost of Ksh. 400,000/= before he was stopped by the 1st Respondent on the basis that the plot did not lawfully belong to him. In 1995, the Appellant filed Civil Suit No. 168 of 1995 which was however not determined because the file went missing.

The 1st Respondent filed a defence denying all those averments adding that all the documents in possession of the Appellant regarding the said plot are fake and were obtained in collusion with some of the 1st Respondent’s employees and that therefore the suit is an abuse of the Court process and ought to be dismissed.

Having filed that suit, the Appellant also sought and obtained orders dated 5th March 2009 restraining the 1st Respondent and its agents or servants more particularly the 2nd Respondent from interfering with the said plot.

The record further shows that on 22nd May 2009, the 2nd Respondent filed an application in KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE NO. 120 of 2008 seeking the following substantive orders:-

That the Honourable Court may be pleased to join the Interested party/Applicant as a party to the suit

That the entire suit be struck out as being res-judicata and an abuse of the Court process

That the Court orders issued on 5th March 2009 be reviewed and or set aside

That the Plaintiff (Appellant herein) be evicted from plot No. 324 Kagio Market as earlier ordered in Senior Resident Magistrate Civil Case No. 227 of 1995.

The trial magistrate considered submissions on that application by both the Appellant and the Respondents and delivered a ruling on 11th November 2009 allowing that application.

That ruling is the subject of this appeal in which the Appellant has raised the following in seeking the setting aside of the said ruling:-

That the learned magistrate erred both in fact and in law in making a finding for Res-judicata where:-

The earlier suit being KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE NO. 227 of 1995 had the Interested party/2nd Respondent herein as the Plaintiff while the Appellant was the Defendant. The 1st Respondent was NOT a party herein.

The subject matter in that suit was plot No. A82 Kagio Market which the 2nd Respondent had double- allocated to the parties which matter was decided against the Appellant.

The subsequent suit being KERUGOYA SENIOR RESIDENT MAGISTRATE CIVIL CASE NO. 120 OF 2008 had the Appellant as the Plaintiff while the 1st Respondent was the Defendant. The 2nd Respondent was not a party therein.

The claim is one for damages for loss suffered by the Appellant due to the double allocation to wit rates paid and development costs of putting up a permanent 4 bed-roomed house on the double allocated plot No. A82 Kagio which was adjudged to belong to the 2nd Respondent herein.

That the learned magistrate erred both in fact and in law by failing to arrest the mischief of the Interested Party/2nd Respondent who applied to be enjoined into the present suit only for purposes of applying to have it struck out as Res-judicata.

That the learned magistrate erred both in law and facts by failing to take into consideration that the Appellant’s application dated 4th March 2009 merely sought orders to restrain the Respondents from demolishing the Appellant’s residential house before valuation of the same was carried out for purposes of assessment of damages and before the suit KERUGOYA SENIOR RESIDENT MAGISTRATE CASE NO. 120 of 2008 was heard and determined.

That the learned magistrate erred both in law and facts by failing to make a finding that the Appellant was an innocent party adversely affected by the double allocation done by the 1st Respondent and was entitled to seek compensation and/or an alternative plot as prayed in the plaint

That the learned magistrate erred by arriving at a wrong ruling which was against the evidence, that law and equity for the Appellant for no fault of his own has lost both the double allocated plot and his right to pursue recompense from the party responsible for his loss, the 1st Respondent herein

Reasons whereof the Appellant prays that:-

The appeal be allowed and the lower Court’s ruling dated 11th November 2009 be set aside

The Appellant’s suit against the 1st Respondent do proceed and be determined on its merits

Costs of this appeal.

When the appeal came before me for directions on 16th July 2015, it was agreed that the same be canvassed by way of written submissions. However, only Mr. Kibicho for the Appellant and Mr. Kahiga for the 2nd Respondent filed their submissions. Mr. Gitonga for the 1st Respondent did not file any.

I have considered the record herein and the submissions by counsel.

The issue for determination in this appeal is really whether KERUGOYA SENIOR RESIDENT MAGISTRATE CIVIL CASE NO. 120 of 2008 was Res-judicata in view of the decree in KERUGOYA SENIOR RESIDENT MAGISTRATE CIVIL CASE No. 227 of 1995. In addressing that issue, the trial magistrate in his ruling the subject of this appeal stated that as follows:-

“The show (sic) of the application is that the parties to the suit were parties in Kerugoya Senior Resident Magistrate Civil Case No. 227 of 1995 dealing with the same issue and which suit was duly determined by a competent Court vide the Court decree dated 23. 9.1997. It has also been stated that the filing of this suit by the Plaintiff against the Defendant seeking orders affecting the Applicant/Interested party is an abuse of Court process”

It was therefore the trial magistrate’s finding that in view of KERUGOYA SENIOR RESIDENT MAGISTRATE CIVIL CASE NO. 227 OF 1995 which dealt “with the same issue”KERUGOYA SENIOR RESIDENT MAGISTRATE CIVIL CASE NO. 120 of 2008 was therefore Res-judicata and “an abuse of Court process” and he proceeded to strike it out.

Res-judicata is provided for in Section 7 of the Civil Procedure Actin the following terms:-

“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”

It is clear from the above that before a claim of Res-judicata can be sustained, the Court must be satisfied that:-

The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit.

The former suit must have been between the same parties or parties under whom they claim.

The parties must have litigated under the same title

The Court which decided the former suit must have been competent.

The former suit must have been heard and finally decided by the Court.

There is no doubt in my mind that the Court which heard KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE

NO. 227 of 1995 was a competent Court and that it heard and finally determined that case resulting in a decree. The issue is whether the subject matter in that case was directly and substantially in issue in the subsequent suit KERUGOYA SENIOR RESIDENT MAGISTRATE CIVIL CASE NO. 120 OF 2008. Whether a matter was directly and substantially in issue in a former suit is to be determined by reference to the plaint and other pleadings as well as the judgment in that suit. From the decree in KERUGOYA SENIOR RESIDENT MAGISTRATE CIVIL CASE NO. 227 of 1995, it is clear that the matter in issue was the eviction of the Appellant from plot No. 324 Kagio and the removal of his structures therefrom. It is also clear that the 1st Respondent was not a party to that suit which only involved the Appellant as Plaintiff and the 2nd Respondent as Defendant. In KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE NO. 120 of 2008, the appellant was seeking an order that he was the owner of plot No. A82 Kagio Market and compensation for the development he had done thereon. The suit was filed against the 1st Respondent before the 2nd Respondent was enjoined therein. Of course the trial Court was entitled to make an order enjoining the 2nd Respondent to the suit if it was important in determining the real issues in dispute. However, the issues in the two suits were not directly and substantially the same and the 1st Respondent not having been a party to KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE NO. 227 OF 1995 could not plead Res-judicata. The issue of compensation for the development on the plot could not have been raised in KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE NO. 227 of 1995 because that claim could only be made against the 1st Respondent who was not a party in that suit. The issues of compensation were therefore neither raised, investigated nor resolved in KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE NO. 227 of 1995. It would also appear that in some pleadings, the reference is to plot No. A82 Kagio while in some other pleadings, the reference is to plot No. 324 Kagio. Whether the two infact refer to one and the same plot was a matter that ought to have weighed on the mind of the trial magistrate in his ruling the subject of this appeal. It must be clear therefore that the principle of Res-judicata will only apply where the dispute is between the same parties or those acting under them and involving the same cause of action. That was not the position in the two suits referred to above.

In the circumstances therefore, I allow the appeal and set aside the ruling dated 11th November 2009 and order that KERUGOYA SENIOR RESIDENT MAGISTRATE COURT CIVIL CASE NO. 120 of 2008 do proceed and be determined on its merits. For avoidance of doubt, the 2nd Respondent is at liberty to participate in the trial as an Interested party should he wish to do so. The Respondents shall meet the costs of this appeal.

B.N. OLAO

JUDGE

26TH OCTOBER, 2015

26/10/2015

Before

B.N. Olao – Judge

Gichia – CC

Mr. Kibicho for Appellant – absent

Mr. Gitonga for Respondent – absent

Mr. Kahigah for Interested party - present

COURT: Judgment delivered this 26th day of October, 2015 in open Court

Mr. Kibicho for Appellant absent

Mr. Gitonga for Respondent absent

Mr. Kahigah for Interested party present.

B.N. OLAO

JUDGE

26TH OCTOBER, 2015E