[2012] KEHC 1916 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

Civil Suit 78 of 1997

LUDOFIKO OKUMU…………………………………………………….1ST PLAINTIFF

VICTOR EDIKOR………………………………………………………..2ND PLAINTIFF

KEFINA MUKADE……………………………………………………….3RD PLAINTIFF

~VERSUS~

RAPHAEL ODETO.……………….…………………………………..1ST DEFENDANT

OKII EDIKOR OMAEMA…………………………………….…...…..2ND DEFENDANT

RULING

This motion was filed on 18/9/2008 to have the court to review, vary and/or set aside the orders made in a ruling delivered on 7/2/2000 in which the present suit was struck out with costs. The Plaintiffs were aggrieved by the orders and brought the motion under Order 44 rules 1 (i) (a), 2 and 4 (1) of the Civil Procedure Rules. The suit was struck out basically because the same was res judicata.

In the instant suit that was filed on 3/9/1997 the Plaintiffs sought the cancellation of the registration of the title of land parcel number South Teso/Amukura/1370 which registration they claimed had been obtained fraudulently. The suit land initially belonged to the 2nd Defendant who entered into agreement to sell it to the 1st Defendant for Ksh.14,500/=. The Plaintiffs pleaded that Ksh.11,700/= was paid leaving a balance of Ksh.2800/=. Secondly, the transaction was not blessed by the consent of the Land Control Board. Yet, the 1st Defendant had proceeded to fraudulently get the suit land registered in his name. This had been done without the consent of the 2nd Defendant. It is on account of this fraud that the Plaintiffs sought the cancellation of the title.

The 2nd Defendant filed a defence in which he agreed with the Plaintiffs. The 1st and 2nd plaintiffs are his sons and the 3rd Plaintiff is his wife. The 1st Defendant denied the claim. He stated that he paid all the purchase price and that the 2nd Defendant signed all the documents that led to the transfer of the suit land to him. He denied fraud. Lastly, he pleaded that the same matter had been heard and decided in Busia SPM CC No.146 of 1993 and Kakamega H.C. Misc. No.26 of 1996. He was basically pleading that the suit was res judicata.

To rely on the defence of res judicata there must be a previous suit in which the matter was in issue; the parties were the same or litigating under the same title; a competent court heard the matter in issue; and the issue had been raised once again in a fresh suit (Abok James Odera v. John Patrick Machira, Civil Application no.Nai 49 of 2001). The cause of action and the relief claimed must have been in issue directly and substantially to maintain a plea of res judicata (Samuel Kiiru Gitau v. John Kamau Gitau, Hccc No.1249 of 1998 at Nairobi.)

The ruling now being attacked made reference to Busia SPM CC no.146 of 1993 which was brought by the 2nd Defendant against the 1st Defendant over the suit land. The 2nd Defendant was claiming that the 1st Defendant had fraudulently obtained registration of the land after he had failed to pay the balance of Ksh.2800/= and after the consent of the Land Control Board had not been obtained. The trial court found that following the sale the entire purchase price had been paid. It was found that the Land Control Board had given consent to the transaction and that the 2nd Defendant had signed the transfer documents. The suit was dismissed with costs.

The Plaintiffs are members of the family of the 2nd Defendant and are suing the 1st Defendant over the suit land, over the sale agreement and over the consent of the Land Control Board. These matters have been fully heard and decided. The Plaintiffs have brought the suit for and on behalf of the 2nd Defendant. The matter is res judicata.

Can the application for review succeed? It is obvious that the Plaintiffs did not agree with the ruling by justice Mbito and that is the reason they seek its review. It is trite that a wrong or incorrect exposition of the law or misconstruing of a statute or other provision of the law are not grounds for review although may be grounds for appeal (Stephen Mugo Mututheri and Another v. Kenya Commercial Bank Ltd and another, Civil Application no.Nai 181 of 2000). If the Plaintiffs did not agree with the decision of Justice Mbito they ought to have appealed against it but not seek review. The facility of review under Order 44 of the Civil Procedure Rules was available to a person who was aggrieved by an order or decree which is appealable but from which no appeal had been preferred or from which no appeal is allowed, and who from the discovery of new and important matter or evidence or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review (Yani Haryonto v. Ed and F. Man (sugar) Ltd, Civil Appeal no.122 of 1992). I have read the Plaintiff’s application for review. There is no indication of the discovery of new and important matter or evidence, and there has been no demonstration of any error on the face of the record. No other reason, sufficient or not, has shown on which review can be grounded.

Lastly, there was inordinate and unexplained delay in bringing the application.

The result is that the application has no merit. It is dismissed with costs.

Dated, signed and delivered at Bungoma this 2nd day of October, 2012.

A.O. MUCHELULE

JUDGE