[2004] KEHC 640 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CIVIL APPEAL NO. 8 OF 1998

PETER MBOGO NJOGU………………. APPELLANT

VERSUS JOYCE WAMBUI NJOGU……………..1ST RESPONDENT

JAMES WARUI NJOGU ………………2ND RESPONDENT

JUDGMENT

1. The Appeal herein arises from a decision of the Central Province Land Disputes Committee in Murang’a Law Disputes Tribunal Case No. 21 of 1997. The facts ought not be an issue at this point by dint of Section 8 (9) of the Land Disputes Tribunals Act, 1990. That section provides that all Appeals from Committees created under Section 8 (1) of the Act shall be on points of law only excluding customary law which is treated as a matter of fact.

2. The point of law arising in this Appeal is that neither the Murang’a Land Disputes Tribunal nor the Central Province Land Disputes Appeal Committee had jurisdiction to hear the matter in question. Relying on Section 3 (1) I am told that the dispute was outside the jurisdiction conferred by the Land Disputes Tribunals Act. Further, that the matter had been fully settled inSPMCC NO.84/1994(Kerugoya) and there being no appeal from the decision in that the matter, the Tribunal and the Appeals Committee could not purport to deal with the matter again.

3. I have looked at the proceedings in the Gichugu Land Disputes Tribunal. The claim by the Respondents herein was a claim to occupy land currently occupied and owned by the Appellant. “Land” is defined in Section 2 of the Land Disputes Tribunals Act as “agricultural Land” as defined in Section 2 of the Land Control Act, whether or not registered under the Registered Land Act …..” It does not matter therefore that the Appellant has title under the Registered Act. Section 3 (1) (b) of the Act gives Land Disputes Tribunals Jurisdiction to determine disputes relating to “a claim to occupy or work land.” The claim by the Respondents was that as step-mother and sister of the Appellant they were entitled to a portion of title No.Ngariama/Rungeto/292 having been expelled by the Appellant in 1962. To my mind, that is sufficient an interest to grant the Tribunal Jurisdiction.

4. The second point is that the matter was determined in SPMCC NO. 84 of 1994 (Kerugoya). The Plaintiff in that suit was the 1st Respondent in this Appeal and the Appellant was the Defendant. The 1st Respondent was laying a claim to title No.Ngariama/Nyangeni/271 on the basis of an alleged trust held by the Appellant for the benefit of the 1st Respondent and the rest of their family. In a judgment delivered on 16. 5.95, R.N. Mutembei Esq, Acting Resident Magistrate, found no trust created and dismissed the suit. He traced the registration of the land in the Appellant’s name to a Succession Cause arising from the death of Ibrahim Njogu, father of the Appellant and since both of the Respondents were adults at the time, there was no reason to create a trust in their favour, they not being minors or otherwise incapacitated.

5. In the Tribunal, one of the parcels of land in question was title No.Ngariama/Nyangeni/271 which was given to the Appellant. The Appeals Committee however awarded the Respondents three acres out of that parcel of land and granted the Appellant, the whole of Ngariama/Rungeto/292.

6. I have carefully considered the implications of SPMCC NO.84/1994. The issue there was one of trust. It was dismissed. The Respondents retreated to the Tribunal and raised a claim to occupy land. Should they be estopped by the doctrine of resjudicata as claimed by the Appellant?

7. Res Judicata applies where “there is an existing final judgment rendered upon the merits, without fraud or collusion, by a court, tribunal, or other judicial body, of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as regards the parties and their privies, in all other actions, proceedings or applications in the same or any other court or judicial tribunal or body of concurrent or exclusive jurisdiction. Once a decision has been given by a court of competent jurisdiction between two persons or their privies over the same subject-matter, neither of the parties would be allowed to relitigate the issue again or to deny that the decision had in fact been given, subject of course to certain conditions.”(Kuloba, J. in Mwangi Njangu vs Meshack Mbogo Wambugu and Another, HCCC 2340 of 1991- Unreported)

8. Applying this very erudite definition, the parties in the Tribunal and the lower court were the Appellant and the 1st Respondent. The land parcel was subject of the Tribunal’s decision, the Appeals Committee’s decision and lower court’s decision. The issues raised in one was that of trust and in the other a claim to occupy land and that is the parting point. However, that is the end of it because in all instances, the Respondents want a share of the land in question which was the subject matter. Res judicatamust be invoked to tell the Respondents,“litigation must come to an end,” Kuloba, J. in probably the most comprehensive Ruling regarding res judicata in our jurisdiction said this, in theMwangi Njangu Case (Supra)“to allow this suit to go on will allow the plaintiff to embroil the entire judicial system- by all court levels-into an interminable litigation warfare over the same one acre of land, between the same parties or their privies for as long as theirs ingenuity will carry them. They will come in all guises. They will ask for declarations at one time; injunction at another or simultaneously damages; transfer of title; nullification thereof, eviction. They will sue in singles; they will sue in plural. They will add anyone coming into contact with this land. Title to this one acre of land will forever be in question. The same question will be gone into over and over again by tribunals of competence. If a litigant were allowed to go for ever re-litigating the same issue with the same opponent, before courts of competent jurisdiction, merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see what use the doctrine ofres judicataplays.” I agree wholly with these extremely clear sentiments and shall apply themmutatis mutandis to this case.

9. Whereas the Tribunal could generally hear matters relating to a claim to occupy land, it is not their business to hear afresh matters already determined by another competent judicial body. I have seen the proceedings in SPMCC No. 84/1994and in the Tribunal case. The facts are the same and the witnesses are the same. No appeal was filed from the judgment in the case before the lower court. What the 1st Respondent did was to file HCCC No.120/1995 (Nyeri) against the Appellant and another. In that suit, she sought 1/3 of the two parcels of land mentioned elsewhere in this judgment. On 26. 8.1998, the suit was withdrawn“for want of prosecution.” With this sort of litigant,res judicata must be invoked and the Tribunal was denied jurisdictionab initio and the Appeals Committee hearing rendered a nullity.

10. Accordingly and for reasons of res judicata the Appeal must succeed as prayed.

11. Costs thereof shall be in the cause as the parties being relatives should sort out their matters at home and bring all litigation to an end in line with this judgment. Orders accordingly.

Dated and delivered in open court on this 16th day of November2004.

I.LENAOLA

AG. JUDGE

Present: Mr. Mutahi for Appellant

Mr. Kibicho for Respondents

I.LENAOLA

A.G JUDGE