[2023] KEELC 21980 (KLR)

Otieno v Obado & 2 others (Environment and Land Appeal 11 of 2022) [2023] KEELC 21980 (KLR) (31 October 2023) (Judgment)

Neutral citation: [2023] KEELC 21980 (KLR)

Republic of Kenya

In the Environment and Land Court at Migori

Environment and Land Appeal 11 of 2022

MN Kullow, J

October 31, 2023

Between

Tom Vicky Otieno

Appellant

and

Daudi Okoth Obado

1st Respondent

John Odongo Obado

2nd Respondent

Samson Obado

3rd Respondent

(An Appeal from the Ruling and Decree of Chief Magistrate Hon. D. O. Onyango delivered on 20th April, 2022 in Migori CM ELC No. 3 of 2019)

Judgment

1. This Appeal emanates from the Ruling and Decree of Chief Magistrate Hon. D. O. Onyango delivered on 20th April, 2022 in Migori CM ELC No. 3 of 2019, in favour of the Respondents. Aggrieved by the said decision, the Appellant lodged the instant Appeal vide a Memorandum of Appeal dated 04. 05. 2022 and outlined the following grounds of Appeal as follows: -i.That the Trial Court erred in holding that there is another file before the court while the same was sent to the disbanded Tribunal in 2012 and no one can trace the said file.ii.That the Honourable Court erred in law and facts when it ignored the submission by the Appellant that the file which was sent to Land Tribunal Court in Uriri Constituency does not exist.iii.That the Trial Court erred in law and fact when it ignored the submission by the Appellant that several attempts were made by the Appellant to trace the file in Uriri Land Tribunal which was disbanded in 2012 and no traces has ever been made to date.iv.That the Trial Court erred in law and fact when it ruled that there are multiple suits while the appealed matter has been in court for the last 8 years.v.That the Trial Court erred in law when it declined to find that the application seeking to dismiss the suit in the lower court on multiple cases, was misconceived and was intended to waste more time in an attempt to defeat justice.vi.That the Lower Court was wrong in failing to find that the Application which was seeking to dismiss the Appellant’s case was in violation of Articles 159 (2) (b), (d) and (e) of the Constitution.vii.That the Trial Court erred in law by denying the Appellant justice by throwing his case out of the court unheard.viii.That the Trial Court erred in law by dismissing the Appellant’s case for sub judice while there was no any other matter before the court of law.ix.That the Trial Court was wrong in dismissing a suit which was set for hearing and Order 11 of the Civil Procedure Rules was already confirmed.

2. Consequently, the Appellant sought the following Orders: -a.That this Appeal be allowed and the Decree of the Chief Magistrate Court delivered on 20th April, 2022 be reversed and set aside.b.That the Honourable court may order a fresh hearing of the Plaintiff’s case on merit.c.That costs of this incidental be paid by the Defendants/ Respondents to the Appellant.

3. A brief background to bring the Appeal into perspective is that; the Respondents herein filed an Application seeking to strike out the Plaintiff’s suit for being sub judice and an abuse of the court process.

4. The Appellant herein filed a Replying Affidavit in response to the claims of sub judice, wherein he stated that the Lands Disputes Tribunal had since been declared defunct and further that efforts to try and trace the file was fruitless. It was therefore his admission that since the file could not be traced, he filed a fresh suit at the trial court.

5. The Application was heard and determined vide a Ruling dated 20/04/2022; whose effect was to strike out the suit hence the instant Appeal.

6. The Appeal was canvassed by way of written submissions. Both parties filed their rival submissions which I have read and considered.

Analysis and Determination 7. I have critically looked at the grounds in the Memorandum of Appeal, Record of Appeal filed and the rival submissions in totality and it is my considered view that the main issue arising for determination is whether this Court should interfere with the exercise of discretion by the trial court and set aside its ruling and order. I will proceed to address the same on account of: -a.The doctrine of sub judiceb.Whether the Appellant is entitled to the reliefs sought in the Memorandum of Appeal.

8. This court’s jurisdiction as a first appellate court is to reappraise the evidence or issues which were before the trial court and make its own conclusion. This mandate does not however entail taking on board new issues which were never brought to the trial court’s attention or matters that were not subject of the trial court’s consideration. See the Court of Appeal decision in Ol Pejeta Ranching Limited vs David Wanjau Muhoro [2017] eKLR.

9. At the heart of the instant Appeal is the doctrine of sub judice. The Appellant contends that the trial court erred in finding that there was another suit pending before the defunct Land Tribunal. It was his contention that tribunal case does not exists since the file cannot be traced and thus the issue of sub judice cannot arise.

10. Section 6 of the Civil Procedure Act defines what amounts to res sub-judice as follows: -“No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they are any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.”

11. The Court of Appeal in Joel Kenduiywo v District Criminal Investigation Officer Nandi & 4 others [2019] eKLR; while grappling with the Application of Section 6 of the Civil Procedure Act held as follows: -“Section 6 of the Civil Procedure Act is meant to prevent abuse of the court process where parallel proceedings are held before two different courts with concurrent jurisdictions or before the same court at different times. This is to obviate a situation where two courts of concurrent jurisdiction arrive at different decisions on the same facts, evidence and cause of action.” (emphasis added)

12. It is not in dispute that there was a previously instituted suit over the same subject matter and between the same parties herein vide Migori PMCC No. 229 of 2005. The said matter was referred to the Lands Disputes Tribunal vide an Order issued on 11. 08. 2005, for hearing and determination and that the said Land Dispute Tribunal has since been declared defunct. It is also common ground that the Appellant herein chose to file a fresh suit in the trial court vide Migori CMELC Case No. 3 of 2019 to ventilate the claims raised in the earlier suit.

13. The question that therefore follows is whether the doctrine of sub judice arises on account of Migori PMCC No. 229 of 2005; which was referred to the defunct Land Disputes Tribunal. The Order of referral of the said matter to the Lands Dispute Tribunal was made on 11/08/2005.

14. I have carefully looked at the Ruling of the trial court and which I seek to reproduce in part as follows: -“what is not clear is what became of the case referred to the defunct land dispute tribunal. Was it ever heard? If not, did the parties make steps to have the file revert back to the court for hearing and determination. The Respondent’s contention that the file sent to the tribunal or the court file could not be traced is not supported by any evidenceThere is not a single letter enquiring about the file either to the tribunal or to the court that referred the matter to the said tribunal.In the premises, it is my finding that to allow the suit to proceed when the plaintiff is not being forthright about the position of the case he earlier filed in respect to the same subject matter would amount to an abuse of the court process…..”

15. The Court of Appeal in Selle v Associated Motor Boat Co. [1968] EA 123) held as follows: -“this court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard the witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or of the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

16. Section 31 of the Environment and Land Court Act repealed the Land Disputes Tribunal Act (No.18 of 1990); which had given the Lands Disputes Tribunal jurisdiction to hear land disputes. Its effect was therefore that the Land Disputes Tribunal became defunct and had no requisite jurisdiction to determine any dispute relating to lands. The question that follows therefore is what happened to the cases pending for hearing and determination before the said Land Dispute Tribunals upon being declared defunct.

17. Pursuant to the Practice Directions issued by the Chief Justice on 9th November, 2012 vide Gazette Notice No. 16268 and by Legal Notice No. 5178 dated 25th July, 2014 on the proceedings relating to the Environment, use, occupation and Title to land; the practice directions required that the proceedings pending before the defunct Land Disputes tribunals were to be transferred to the Magistrate’s Courts to be heard and determined by the Magistrate’s Courts.

18. Further, Obaga J. in the case of Annah Kwamboka Ogaro v. Nakuru Provincial Land Disputes Appeals Committee (2013) eKLR while commenting on the pending matters before the Land Disputes Tribunal stated as follows: -“Once the Land Disputes Tribunal Act of 1990 was repealed, the Tribunals established under the Act were supposed to administratively forward all pending proceedings before them to the respective Subordinate Courts within their jurisdictions. Once the proceedings are before the Subordinate Courts, it was then the duty of the Subordinate Courts to give directions on the best way to dispose of the matters. This is why the Chief Justice issued the practice directions contained in Gazette Notice No. 16268 of 09/11/2012 in anticipation that all the proceedings of the defunct tribunals would have been returned to the respective Subordinate Courts. It is not difficult for the defunct tribunals to send the files pending before them to the Subordinate Courts. Any appeal to the Provincial Land Disputes Appeals Committee must have passed through a particular Subordinate Court where the Land Disputes Tribunal verdict was adopted as judgment pursuant to Section 7(2) of the Land Disputes Tribunal Act. It will therefore not be a big task for the officials in those offices to sort out the pending files and forward them to the respective Courts.”

19. Guided by the decision above; it is my considered opinion that the onus was on the Land Dispute Tribunals to administratively forward all the pending proceedings before it to the respective Subordinate Courts within their jurisdictions in compliance with the Practice Directions issued by Chief Justice vide Gazette Notice No. 16268 and 5178 mentioned above. In the instant case, it is not clear whether the Uriri Land Dispute Tribunal indeed forwarded the said pending file to the Subordinate Court. It cannot therefore be said with certainty that there is a pending suit and/or parallel proceedings being conducted before two different court with concurrent jurisdiction. The Respondent herein did not provide any proof of a pending case before the subordinate court with competent jurisdiction, other than simply stating that the matter was forwarded to the defunct Land Disputes Tribunal.

20. The Court of Appeal in Ephantus Mwangi and Another Vs Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1 KAR 278 pronounced itself thus:“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.

21. While the trial court correctly stated that it is not clear what became of the case referred to the defunct Land Dispute Tribunal, in my humble opinion, he failed to consider that the onus was on the defunct tribunal to administratively forward the file to the Subordinate Court. Further, he did not consider that there is no clear proof of a case pending before a court of concurrent jurisdiction and therefore it could not be held with certainty that the instant suit is sub judice.

22. In the circumstances of this case where none of the parties knows of the status of the dispute before the defunct land disputes tribunal; it will be just and fair for the parties to ventilate their claims before the trial court on merit and with finality.

Conclusion 23. In conclusion, I accordingly find that the Appeal dated 4th May, 2022 is merited and I accordingly allow the same on the following terms: -i.The Appeal is hereby allowed; the Decree of the Chief Magistrate Court delivered on 20th April, 2022 be and is hereby set aside.ii.Consequently, I hereby direct that the Plaintiff’s case do proceed for hearing afresh on merit.iii.That costs of the Appeal be borne by the Respondents.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MIGORI ON 31ST DAY OF OCTOBER, 2023. MOHAMMED N. KULLOWJUDGEIn the presence of: -______________________ for Appellant______________________ for RespondentCourt Assistant- Tom Maurice/ Victor