[2012] KEHC 3734 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT 479 OF 2009

MWANAMISI IDDI MWACHANYUMA...............................PLAINTIFF

-VERSUS-

1. ATTORNEY-GENERAL

2. FRANCIS KIPKOECH KIGEN

3. THE REGISTRAR OF TITLES.....................DEFENDANTS

RULING

After the filing of the plaintiff’s suit, by plaint dated 22nd December, 2009, the 2nd defendant moved the Court by the Chamber Summons of 8th July, 2010 brought under s.3A of the Civil Procedure Act (Cap.21, Laws of Kenya) and Order VI, Rule 13(1)(b) and (d) of the earlier edition of the Civil Procedure Rules. The application carries one substantive prayer: that “the plaint dated 22nd December, 2009 be struck out.”

The application rests on the following grounds:

(i)the suit as filed is “scandalous, frivolous and vexatious”;

(ii)the suit is “otherwise an abuse of the process of the Court”;

(iii)the plaintiff’s claim is “time-barred in its entirety”;

(iv)the plaintiff’s suit is res judicata in the light of Mombasa H.C. Misc. Civil Application No. 344 of 2006;

(v)the Orders sought by the plaintiff “are in complete contradiction to the decree issued in Civil Appl. No. 344 of 2006, which decree is valid and not the subject of an appeal”;

(vi)the 2nd defendant’s right as the holder of first registration is indefeasible;

(vii)the property known as Kwale/Diani Beach/642 no longer exists under the law.

The applicant swore a 20-paragraph affidavit, on 8th July, 2010 in support of his application; and to this, the plaintiff, Mwanamisi Iddi Mwachanyuma swore a 21-paragraph replying affidavit on 26th August, 2010 deponing that the suit, in respect of L.R. No. Kwale/Diani Beach/642, is not time-barred since “the High Court has [inherent] jurisdiction to deal with matters governed by the Registered Land Act (Cap.300).”The deponent deposes that she has always lived in the suit premises and she regards it as her home and has developed it on that basis.

Learned counsel, Mr. Munyao for the applicant, submitted that the suit was time-barred: for 2nd defendant had acquired ownership of the suit property, L.R. No. Kwale/Diani Beach/642 in 1991, and the suit was filed on 23rd December, 2009. Counsel urged that the plaintiff herself has confirmed 2nd defendant’s ownership: at para.7 of the plaint, the plaintiff pleads –

“That in 1990 or thereabouts the suit property herein was allocated to the 2nd defendant by the Commissioner of Lands whereas the plaintiff was resident on the same land and….2nd defendant has never resided in the said property.”

And at para. 3 of the plaintiff’s replying affidavit she deposes:

“THAT it is true….the suit revolves around property known as Kwale/Diani Beach/642, and the 2nd defendant acquired title in 1992. ”

Counsel urged that the plaint cannot stand “whether under tort or for recovery of land, when it is being filed more than 18 years after the title had….been issued to 2nd defendant.” Relying on the terms of s.7 of the Limitation of Actions Act (Cap.22), counsel urged that “the plaintiff slept on her rights to initiate an action at the appropriate time and so she is guilty of laches and….cannot [even] be aided by equity since equity aids the vigilant and not the indolent.”

Counsel submitted that the action, insofar it is grounded on tort, ought, by s.4(2) of the Limitation of Actions Act, to have been brought within three years.

Counsel submitted that the plaintiff’s case would also not qualify under s.27 of the Limitation of Actions Act, as she had not pleaded “any ignorance of the material facts leading to the 2nd defendant being registered as the owner of [the suit property].”

Learned counsel submitted that the suit property being former Government land, the plaintiff would have been bound by the time-frame for action specified in s.136 of the Government Lands Act (Cap.280, Laws of Kenya), which provides:

“All actions, unless brought on behalf of the Government for anything done under this Act shall be commenced within one year after the cause of action arose and not afterwards.

“Notice in writing of the action, and the cause thereof, shall be given to the defendant one month at least before the commencement of the action.”

The instant action, counsel submitted, “has not been commenced within the stipulated time of one year…”; and so, the suit ought to be struck out.

Is the suit res judicata? Yes, indeed, learned counsel urged. From the evidence: the plaintiff had filed Land Dispute No.32 of 2005 at the Msambweni Land Disputes Tribunal, to which 2nd defendant was not a party; it was heard and determined; the award was adopted by the Senior Resident Magistrate’s Court in Kwale Land Case No. 6 of 2005; the 2nd defendant filed Judicial Review proceedings by Notice of Motion of 5th April, 2006 – Misc. Civil Application No. 344 of 2006 in which the plaintiffwas the Interested Party; the Notice of Motion was allowed by consent of the parties; a decreewas, on that basis, issued.

In the Judicial Review matter of 5th April, 2006 certain issues had arisen which, counsel urged, affect the application herein: was 2nd defendant the registered owner of the suit property? did the process of registration extinguish any pre-existing customary claims? was the plaintiff entitled to the prayers sought in Msambweni Land Disputes Tribunal Case No. 6 of 2005? was the plaintiffthe rightful owner of the suit parcel of land, L.R. No. Kwale/Diani Beach/642? should all titles resulting from subdivisions of L.R. No. Kwale/Diani Beach/642 be cancelled, and all the titles re-issued in the name of the plaintiff?

Counsel submitted that, in the Judicial Review matter, the plaintiff had a full opportunity to be heard, and she elected to reach a consentwith 2nd defendant which resulted in the Notice of Motion of 5th April, 2006 being allowed, and a decree being made and issued on that basis. By so consenting, counsel urged, “the plaintiff was in fact putting to rest all the other issues she could have raised which she has again raised in this present claim”; for she seeks a declaration that she is the lawful owner of plot No. Kwale/Diani Beach/642; she seeks that all entries in the Land Register in respect of the original plot No. Kwale/Diani Beach/642 be expunged; and she seeks an Order of injunction restraining 2nd and 3rd defendants from subdividing, selling, transferring, disposing of or interfering with plot No. Kwale/Diani Beach/642.

Learned counsel urged that the issues arising in the current suit are, by and large, the same issues that arose or ought to have been raised in Misc. Civil Application No. 344 of 2006, and, by the terms of s.7 of the Civil Procedure Act (Cap.21), such issues are res judicata.

The principle raised by counsel is well recognized in judicial practice: Pop-In (Kenya) Ltd & 3 Others v. Habib Bank AG Zurich[1990] KLR 609.

Learned counsel, Ms. Okumu for the plaintiff submitted that “dismissing this suit will be draconian as it would effectively lock her out of the justice system.” But learned counsel did not claim the 2nd defendant’s argument was marred by any juristic deficiency; instead she adjured the Court to be guided by its “inherent powers to hear and determine all matters under the Registered Land Act (Cap.300).”

Counsel acknowledged that “the suit may be time-barred under s.7 of the Limitation of Actions Act (Cap.22)”; but she maintained that “the defect can be cured by leave being obtained under Order XXXVI, Rule 3C(2) of the Civil Procedure Act.”

Of the issues of res judicata, learned counsel thus urged: “the suit is not res judicata for the reason that [Misc. Application] No. 344 of 2006 merely quashed the decision of the Land Disputes Tribunal ..….”

Order XXXVI, Rule 3C of the earlier edition of the Civil Procedure Rules, which Ms. Ogola proposes as a basis for validating the plaintiff’s suit, thus provides:

“(1) An application under section 27 of the Limitation of Actions Act made before filing a suit shall be made ex parte by originating summons supported by affidavit.

“(2) Any such application made after the filing of a suit shall be made ex parte by summons in the suit supported by affidavit.”

Counsel, in effect, proposes that the Court should be constrained to have the suit progress, and should create locus poenitentiaefor the plaintiff to render the suit a proper one, by filing a new application in respect of an expired limitation period.

Learned counsel did not, however, address herself to the critical challenge to the suit, the very test upon which the suit must stand or fall: Is the suit res judicata? Is the subject-matter of the suit “an issue that has been definitively settled by judicial decision”[Black’s Law Dictionary, 8th ed. (2004), pp.1336-1337]?

From the evidence and the submissions by counsel on both sides, the suit herein shares at least some common ground with a previously-concluded Judicial Review matter: Mombasa H.C. Misc. Civil Application No. 344 of 2006. In that matter, in which the plaintiff herein appeared as Interested Party, the contest was in relation to the suit property which is the subject of the instant suit, plot No. Kwale/Diani Beach/642;and the ex parte applicant, who is 2nd defendant herein, was seeking certain Orders which would confirm him as the legal owner of the suit property. The applicant in that case had sought the nullification of Orders of lower tribunals which had left doubts lingering as to the legal ownership of the suit property; and the High Court concluded the matter with a Decree, issued on 26th January, 2007, in the following terms:

“(a) An Order of certiorari be and is hereby granted to the ex parte applicant quashing the Judgment of Msambweni Land Disputes Tribunal in Land Disputes Case No. 32 of 2005 where the complainant was Mwanamisi Iddi Mwachanyuma and which Judgment was filed at the Senior Resident Magistrate’s Court at Kwale and on 6th October, 2005 the said Magistrate made an Order adopting the Judgment.

“(b) An Order of certiorari be and is hereby granted to the ex parte applicant quashing the Order made on 6th October, 2005 by the Senior Resident Magistrate’s Court at Kwale in Land Case No.6 of 2005 where the plaintiff was Mwanamisi Iddi Mwachanyuma and which Order confirmed and adopted the award of the Msambweni Land Disputes Tribunal in terms of the Judgment entered in the aforesaid Land Dispute Case No.32 of 2005.

“(c) An Order of Prohibition be and is hereby issued directed at the Land Registrar, Kwale prohibiting the Land Registrar, Kwale from revoking and cancelling Subdivisions made on plot No. Kwale/Diani Beach/642 and in particular the Land Registrar Kwale be prohibited from revoking or cancelling title Nos. Kwale/Diani Beach/879, Kwale/Diani Beach/909, Kwale/Diani Beach/910, Kwale/Diani Beach/911, Kwale/Diani Beach/912, Kwale/Diani Beach/915 all being Subdivisions of Kwale/Diani Beach/642 issued to and held by the ex parte applicant herein (Francis Kipkoech arap Kigen) and that the Land Registrar, Kwale be and is hereby prohibited from issuing a fresh title to Plot No. Kwale/Diani Beach/642 in favour of Mwanamisi Iddi Mwachanyuma.”

That was the last word of the Court; there was no appeal therefrom. So, the Decree represented a final, binding statement of the law regarding the rights of the parties; and the parties, in essence, were the plaintiff and the 2nd defendant herein. As between these parties the High Court had settled the question of ownership of Plot No. Kwale/Diani Beach/642 with finality: the legal owner was 2nd defendant herein. The Court had gone further to validate the several subdivisions already created out of Plot No. Kwale/Diani Beach/642, and to prohibit the Land Registrar from making any alterations to the Register.

The plaintiff, however, by her plaint of 22nd December, 2009, just-under-three years since the High Court’s Orders, returns with prayers for injunctions to restrain the subdivision of Plot No. Kwale/Diani Beach/642; for declarations nullifying the subdivisions that have already taken place and have declared valid; for cancellation Orders directed at the Land Registrar; for a declaration that the plaintiff is the lawful owner of the said property.

That cannot be done. Res judicata. Since this position must be well apprehended by the plaintiff’s counsel who filed the suit papers, the suit is to be regarded as a glaring abuse of the process of the Court.

I hereby allow the second defendant’s application by Chamber Summons of 8th July, 2010; and I strike out and dismiss the plaintiff’s suit of 22nd December, 2009. The plaintiff shall bear all costs in respect of the said suit and application.

Orders accordingly.

SIGNED at NAIROBI……………………………….

J.B. OJWANG

JUDGE

DATEDand DELIVERED at MOMBASA this 19th day of March, 2012.

MAUREEN ODERO

JUDGE