[2017] KEHC 1171 (KLR)
The court found that the previous proceedings before the Land Dispute Tribunal and the Magistrate's Court were conducted without jurisdiction, as those forums lacked the legal mandate to determine ownership of land. Consequently, the doctrine of res judicata did not apply, since a competent court had not previously...
Source-derived case information.
- Citation
- [2017] KEHC 1171 (KLR)
- Parties
- Plaintiff: Mwenjeri Kibuba; Defendant: Wilfred Warui Kibuba; Respondent: District Surveyor Murang’a; Respondent: District Land Registrar Murang’a
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 104 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed with costs to the respondent
- Judges
- BC Koech
- Legal Topics
- Res Judicata, Limitation of Actions, Fraud in Land Transactions, Trusts in Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwenjeri Kibuba
Plaintiff
Wilfred Warui Kibuba
Defendant
District Surveyor Murang’a
Respondent
District Land Registrar Murang’a
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit is barred by the doctrine of res judicata.
- 2 Whether the suit is time-barred under the Limitation of Actions Act.
- 3 Whether the Defendant committed fraud in the subdivision and registration of the suit land.
Ratio Decidendi
The court found that the previous proceedings before the Land Dispute Tribunal and the Magistrate's Court were conducted without jurisdiction, as those forums lacked the legal mandate to determine ownership of land. Consequently, the doctrine of res judicata did not apply, since a competent court had not previously determined the matter. On the issue of limitation, the court held that the claim involved allegations of fraud and trust in land, which require a full hearing and evidence to determine when the Plaintiff became aware of the alleged fraud and whether limitation can be pleaded by the Defendant. The court also noted that these issues had already been addressed and dismissed in a...
Court Disposition
application dismissed with costs to the respondent
Orders
- The Defendant's application to strike out the suit is dismissed.
- Costs awarded to the Plaintiff/Respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MURANG’A
E.L.C CASE NO. 104 OF 2017
MWENJERI KIBUBA - PLAINTIFF/RESPONDENT
VS
WILFRED WARUI KIBUBA - DEFENDANT/APPLICANT
AND
DISTRICT SURVEYOR MURANG’A - 1ST INTERESTED PARTY
DISTRICT LAND REGISTRAR MURANG’A - 2ND INTERESTED PARTY
RULING
1. It is a ruling on an application stated 26/9/17 seeking an Order to strike out the suit. It is supported by the Affidavit of the Defendant. The basis of the application is that the Plaintiff failed intentionally to disclose material facts to the Court like the existence of another suit touching on the subject matter. The suit being referred to is Land Dispute Tribunal (LAND DISPUTE TRIBUNAL) No. 32 of 2006 and HCCC No 88/2006. In the LAND DISPUTE TRIBUNAL, the Defendant was ordered to return 2. 5 acres of land to the Plaintiff. Aggrieved by that decision the Defendant filed an appeal in the HCCC 88/2006. After the hearing of the appeal the High Court reversed the decision of the LAND DISPUTE TRIBUNAL. The reason for reversion was that the tribunal lacked Jurisdiction under the Land Dispute Act to determine a case relating to ownership of land.
2. To support this application, he annexed the proceedings in the LAND DISPUTE TRIBUNAL and the Order made by the Magistrate in the same cause and the Judgement in the High Court. On the basis of the said documents the Defendant submitted that the suit is barred by Limitations and the matters raised were Resjudicata.
3. In respect to issue of Resjudicata, the case in the High Court relied by the Defendant made a finding which I agree that the LAND DISPUTE TRIBUNAL and the Magistrate Court acted without Jurisdiction. Both were therefore not a competent Court and did not determine the matter properly before them.
4. In respect to the issue of time bar, the applicant is faced with a case alleging fraud against him. The circumstances giving rise to this allegation is that both the Plaintiff and the Defendant became registered owners of parcels of land in Succession known as LOC.14/Kairo/1023 and LOC.14/Kairo/885 respectively. The Defendant divided 1 LOC.14/Kairo/1023 equally into his family and that of the Plaintiff. Under this heading there is no dispute arising. The dispute arises out of the land Registered in the Plaintiffs name being LOC.14/Kairo/885 which the Defendant allegedly subdivided and registered to himself allegedly in excess of his entitlement 2. 5 acres without the Plaintiffs consent. It is noteworthy that the lands allegedly registered in the names of the Plaintiff and Defendant respectively were ancestral land held in trust for the beneficiaries of such lands. It appears that the beneficial interest in the land held by the Defendant was settled with finality. The beneficial interest held in the land held by the Plaintiff is the subject of this case in which it is alleged that the Defendant was engaged in fraudulent acts.
5. In such instances it is necessary for the Court to make a finding with finality upon evidence on matters not limited to;-
a) Circumstances under which the Defendant subdivided land registered in the name of the Plaintiff.
b) The terms of the agreement in the two families as alleged by the Defendant to subdivide Land registered in the name of Plaintiff.
c) The total acreage of the land registered in the name of the Plaintiff.
d) The total acreage of the land after the subdivision held by the Plaintiff and Defendant.
e) The Date when the Plaintiff became aware of the fraud allegedly committed by the Defendant, if any.
f) Whether the Defendant is entitled to plead limitation in a case involving trust in land, where he is a beneficiary.
6. Prior to this application the Defendant had filed a Preliminary Objection on the twin issues of Resjudicata and time bar. The present application as filed and on the submissions of Counsel had dealt with the issues raised in the Preliminary Objection. This Court after hearing the Preliminary Objection on the above twin issues on 13/7/17 dismissed it with costs.
7. Given the elaborate findings in the ruling of the Court on the twin issues it may not have been necessary in the Courts view for the Defendant to file the present application. In the circumstances the application is dismissed with costs to the Respondent.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 14TH DAY OF DECEMBER, 2017
J G KEMEI
JUDGE