[2009] KEHC 2716 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

CIVIL CASE 47 OF 2009

NDUNI NGOMO …………………… PLAINTIFF/APPLICANT

VERSUS

ITAVWA MULI …………… DEFENDANT/RESPONDENT

RULING

1. The dispute between the parties before me can be traced to proceedings in Mwingi SRMCC No. 127/2003. In that suit, the present Defendant, Itavwa Muli had sued Nduni Ngomo, the present Plaintiff claiming Kshs.33,900/=, costs and interest thereon being the balance of purchase price of land which was not described at all in the Plaint dated 15/10/2003. Although in the Plaint the Plaintiff sought orders that the Defendant “be ordered to vacate the land”, no specific prayer was made at the end and from a copy of the decree attached to the Affidavit in support before me, the decree was for Kshs.67,630/=.

2. The present Application is dated 7/4/2009 as amended and the Plaintiff in this suit prays for orders as follows:

a.“THAT: this application be certified urgent and heard ex-parte in the first instance.

b.THAT: a mandatory injunction do issue directing the defendant by himself, his servants, agents and/or employees or by whosoever else acting on his behalf, to reinstate the Plaintiff to the possession, use and occupation of the undemarcated land from which he evicted the plaintiff.

c.THAT: the defendant whether by himself, his servants, agents, and/or employees or by whosoever else acting on his behalf, be restrained from preventing the plaintiff by herself, her servants, agents and/or children from entering into, remaining on, occupying, possessing and/or suing the undemarcated land from which she was evicted ostensibly in execution of the court decree in Mwingi Senior Resident magistrate’s Court Civil Case Number 127 of 2003 between Itavwa Muli –versus- Nduni Ngomo until the interpartes disposal of this application.

d.THAT: the defendant, whether by himself, his servants, agents and/or employees or by whosoever else acting on his behalf, be restrained from interfering with the plaintiff’s occupation, use and possession of the undemarcated land from which she was evicted ostensibly in execution of the court decree in Mwingi Senior Resident Magistrate’s Court Civil Case Number 127 of 2003 between Itavwa Muli and Nduni Ngomo until the interpartes disposal of this suit.

e.Costs of this application be awarded to the plaintiff.”

3. The grounds in support are that;

i.“The eviction of the plaintiff was unlawful, wrongful and illegal.

ii.The plaintiff is suffering and continues to suffer loss and damage that cannot be recovered as damages.

iii.The plaintiff has a prima facie case against the defendant which has high chances of success.

iv.The balance of convenience favours the granting of the injunction sought in this application.

v.The justice of this case favours the granting of the orders sought in this application.

vi.The plaintiff stands to suffer great prejudice and injustice unless the orders sought are granted.”

4. In the Supporting Affidavit sworn on 4/3/2009, the Applicant depones that the judgment and decree in Mwingi SRMCC 127/2003 were all ex-parte and her attempts to set aside the judgment failed and she was thereafter committed to civil jail for failure to pay the decretal sum. That she was only released after 2 months in custody. Later, on 1/6/2008, Auctioneers acting on behalf of the Respondent entered her homestead and demolished dwelling houses, pit latrine, gate, grain store and farm layout fence and they did so in purported execution of the decree aforesaid which was only a monetary decree. That no order of eviction was ever made in those proceedings and it was an error to execute a non-existent decree.

5. In his Replying Affidavit sworn on 17/3/2009, the Respondent merely deponed that the execution proceedings were lawful and the Applicant should have filed an appeal to this court but not a separate suit as she did. That therefore the proceedings before this court are an abuse of court process and should be struck off.

6. I have taken into account the submissions made and I think I should begin by disposing of the issue whether the Applicant is properly before this court. I have perused the Plaint herein and the cause of action relates to the manner in which the Respondent executed the warrants of attachment in the case before the subordinate court.

7. The warrants leading to the Applicant’s eviction were issued so far as I can see within SRMCC No. 127/2003 (Mwingi). If there was anything unlawful about the orders, the procedural thing to do is to challenge those warrants within that suit. I note in fact that on 27/3/2008 Mr Nzilli holding brief for Mr Mbithi, advocate for the Applicant sought an order of stay of execution and stated as follows:-

“The urgency is that the court has issued a warrant to give vacant possession….this is a money claim”.

8. It is clear that the Application was finally dismissed on 26/5/2008 for want of prosecution. I may have something adverse to say about that order but the option available to the Applicant was not to file a fresh suit in this court and seek mandatory orders but to file an appeal against any or all of the orders made in the subordinate court. I say so because all the issues now in contest in the present suit are also in contest before the subordinate court. It is what Section 7 of the Civil Procedure Act frowns upon by the application of the principle of res judicata. The lower court may have been less than fair to the Applicant in dismissing an application merely because the advocate was unable to attend court but that is no license for the Applicant to abandon those proceedings and begin litigation in this court. Section 7 aforesaid provides as follows:-

“7. 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.

Explanation.(1) – The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.

Explanation.(2) – For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.

Explanation.(3) – The matter above referred to must in the former have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation.(4) – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation.(5) – Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

Explanation.(6) – Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”

9. The above section applies to the instant situation because the Applicant has the chance and can still have the opportunity to challenge her eviction from the court that issued the warrants. If the order is not agreeable then a fresh suit to relitigate the issue cannot stand.

10. Once I have held as above, there is no reason to go to the merits of the Application.

11 In the event, I will decline to grant orders in the Application as the suit is res judicata. Instead, I will order the suit and the Application struck off with costs to the Respondent.

12 Orders accordingly.

Dated and delivered at Machakos this 3rdday of June2009.

ISAAC LENAOLA

JUDGE

In presence of: Mr Musyoki for Applicant

ISAAC LENAOLA

JUDGE