[2013] KEELRC 325 (KLR)

REPUBLIC OF KENYA

High Court at Kerugoya

Environmental & Land Case 66 of 2012 [if gte mso 9]><xml>

800x600

</xml><![endif]

MWANIKI KIBUI ............................................) APPLICANT/PLAINTIFF

VERSUS

1. JANE MUTHONI WAWERU ...................)

2. KARURI WERU .........................................)

3. MARY MUTHONI WAMBUGU ..............)

4. ANTHONY GITHINJI WERU ....... ..........) DEFENDANTS/RESPONDENTS

5. FRANCIS MURUGA WERU....................)

6. JAMLECK NDEGE WERU ....................)

RULING

By an originating summons filed herein on 2/7/2010, the plaintiff sought orders that he is entitled to some portions of land by adverse possession for over 12 years. However, in her replying affidavit in response to that application, the 1st defendant urged that the said originating summons be dismissed as the property subject matter of this suit was litigated in Kerugoya Principal Magistrate Succession Cause No. 32 of 1992 wherein the plaintiff was a protestor and his protest was dismissed and the grant therein was confirmed whereby the land was transferred and new titles issued and therefore, this originating summons is effectively an appeal against the decision in Succession Cause No. 32 of 1992.

The defendants then filed a Notice of Preliminary Objection to the said originating summons on the following two grounds:-

a)That this suit is res-judicata the proceedings and judgment in Kerugoya SPMCC Succession Cause No. 32 of 1992 where the plaintiff was the protestor and the defendant the administrator.

b)That this suit is an abuse of the court process and erected covertly as an appeal against the decision in the Kerugoya Court Succession Cause even after leave to appeal out of time was denied by the High Court Nyeri.

It is that Preliminary Objection that is the subject of this ruling and when they parties appeared before me on 16/1/2013 following the transfer of this suit from the High Court Embu to this Court, it was agreed that the same be canvassed by way of written submissions.

The submissions were duly filed by advocates for both parties and I have considered them together with the other pleadings herein.

The law applicable in relation to Preliminary Objections was set out in the case of MUKISA BISCUIT MANUFACTURING CO. LTD VS WEST END DISTRIBUTORS LTD (1969) E.A. 696 where the Court of Appeal for East Africa stated that a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point, may dispose of the suit.The Court went further and stated that such an objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

As stated at the beginning of this ruling, the Preliminary Objection herein is based on two issues i.e. that this suit is res-judicata the proceedings and judgment in Kerugoya SPMCC Succession Cause No. 32 of 1992 and secondly, that it is an abuse of the court process erected covertly as an appeal against the said Succession Cause.

Res-judicata is any affirmative defence baring the same parties from litigating a second suit on the same claim or any other claim arising from the same transaction or series of transactions that could have been but were not raised in the first suit. The three essential elements of res-judicata are:-

1. An earlier decision on the issue

2. A final judgment on the merits

3. The involvement of the same parties or parties in privity with the original parties – see BLACK’s LAW DICTIONARY 9th Edition.

Section 7 of the Civil Procedure Act describes res-judicata in 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”.

From the above provision, one can discern five essential elements that must exist before a plea of res-judicata can successfully be raised. These are:-

1. 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.

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

3. The parties must have litigated under the same title

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

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

Res-judicata aims at ensuring that litigation comes to and end and a matter that has been conclusively decided upon by a competent judicial authority must not find itself again before the same or other competent authority for reconsideration. The plea of res-judicata therefore applies not only to points which the Court was actually required by the parties to form opinion and pronounce judgment on but even points which property belonged to the subject of the previous litigation and which the parties, exercising reasonable diligence, might have been brought forward at the time of the previous suit.

The above captures the law on the issue of res-judicata and this is a matter of law which can properly be raised through a preliminary objection. Having said so, are the matters raised in this originating summons filed on 2/7/2010 res-judicata in view of the judgment in Kerugoya SPMCC Succession Cause No. 32 of 1992? In my view, the answer to the above is “No” for the following reasons:-

Firstly Kerugoya SPMCC No. 32 of 1992 was a Succession Cause where the plaintiff was the protestor claiming that he had been left out as a beneficiary of the Estate of one WERU KARURI (deceased) and therefore sought a claim in L.R. No. INOI/KIAMBURI/172. His protest was dismissed and the grant was confirmed as proposed by the petitioner JANE MUTHONI WERU who is the 1st defendant herein and who was the only party in the said Kerugoya SPMCC No. 32 of 1992. This matter now before me is a claim by the plaintiff that he is entitled to be declared to have become entitled by adverse possession to half acre of the land parcel No. L.R. INOI/KIAMBURI/172 before it was sub-divided by the respondents herein. Further, in this case, although the petitioner in the Kerugoya SPMCC No. 32 of 1992 is a party, there are also five other parties who were not involved in the previous suit. Clearly therefore, although the Kerugoya SPMCC No. 32 of 1992 and this suit both involve a claim over L.R. INOI/KIAMBURI/172, the issues in both suits cannot be said to be directly and substantially the same so as to successfully raise a defence of res-judicata. The issues raised in the Kerugoya SPMCC No. 32 of 1992 were issues of succession and the Court was called upon to decide on whether or not the plaintiff herein and who was a protestor in the previous case was a beneficiary to the Estate of WERU KARURI. The issues being raised herein are whether or not the plaintiff can be declared to have become entitled by adverse possession to half acre of land No. L.R INOI/KIAMBURI/172 having lived on it for over 12 years. Therefore, the issues that this Court is being called upon to adjudicate over are not the ones that the subordinate Court made a decision on in Kerugoya SPMCC No. 32 of 1992.

Secondly, for res-judicata to be successfully pleaded, the issues being raised in the new suit must be issues which the parties, exercising due diligence, might have been able to bring forward at the time of the former suit for determination and which therefore should not be raised again in a fresh suit. In the suit now before me, the issue being raised is ownership of land by adverse possession. That issue could not have been raised in the subordinate Court that determined Kerugoya SPMCC Succession Cause No. 32 of 1992 because by dint of the provision of Section 38 of the Limitation of Actions Act (chapter 22 Laws of Kenya), issues of adverse possession are a preserve of the High Court. The issue of adverse possession could not therefore have been raised in Kerugoya SPMCC Succession Cause No. 32 of 1992 and in the circumstances, res-judicata cannot be raised in these proceedings now before me,

Lastly, the parties in Kerugoya SPMCC Succession Cause No. 32 of 1992 were the plaintiff as Protestor and the 1st defendant as Petitioner. The 2nd, 3rd 4th 5th and 6th defendants who are parties herein were not parties in the said Succession Cause and in any event, the 1st defendant herein is now litigating under a different title and so too is the plaintiff. The plea of res-judicata cannot therefore apply.

The Preliminary Objection is also founded on the claim that this suit is an abuse of the court process and erected covertly as an appeal against the decision of the Court in Kerugoya SPMCC No. 32 of 1992. A court process is said to be abused when it is invoked improperly or maliciously to obtain a result that is either unlawful or beyond the powers and scope of the court. I do not discern anything in these proceedings to suggest that they have been instituted maliciously or on the basis of any improper motive.

Ultimately therefore, upon consideration of all the matters raised in this Preliminary Objection on the basis that this suit is res-judicata and an abuse of the court process, I find no merit in the same. It is accordingly dismissed with costs.

B.N. OLAO

JUDGE

10/5/2013

Before B.N. OLAO – JUDGE

CC – Muriithi

Ms Kiragu for Applicant – present

Mr. Karweru for Respondent – absent

COURT:Ruling delivered this 10th day of May 2013

Ms Kiragu for Plaintiff present

No appearance for defendant

B.N. OLAO

JUDGE

10/5/2013

[if gte mso 9]><xml>

Normal 0

false false false

EN-US X-NONE X-NONE

MicrosoftInternetExplorer4

</xml><![endif][if gte mso 9]><![endif][if !mso]> <style> st1:*{behavior:url(#ieooui) } </style> <![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]