[2016] KEELC 256 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELC NO. 38 OF 2016

(FORMERLYNYERI HCCC NO. 28 OF 1977)

PETER MBUTHIA KAMORE ..... PLAINTIFF (DECEASED)

-VERSUS-

MACHARIA KAMORE ....... 1ST DEFENDANT (DECEASED)

MACHARIA KARIUKI ....... 2ND DEFENDANT (DECEASED)

KIHORO GACHUHI ........... 3RD DEFENDANT (DECEASED)

(SUBSTITUTED BY WAMBUI KIHORO - DECEASED)

KAMORE GACHUHI .......... 4TH DEFENDANT (DECEASED)

(SUBSTITUTED BY WAITHERA KAMORE, DECEASED)

JOSEPH MAINA KAGUTU ALIAS JOSEPH MAINA KIHORO .................... 1ST INTERESTED PARTY/APPLICANT

HARRISON KAMORE KAGUTU ALIAS HARRISON KAMORE KIHORO ..... 2ND INTERESTED PARTY/APPLICANT

-VERSUS-

STEPHEN NDEGWA MUCHUNU (DECEASED)

PETER MURAYA KARUGA

JAMES GICHANGA CHUI

JOHN WAIKUNU CHUI (DECEASED)

GATHIRU MACHIBI (DECEASED)

ANDREW MWANGI CHUI ........ RESPONDENTS

RULING

1. Joseph Maina Kagutu alias Joseph Maina Kihoro and Harrison Kamore Kagutu alias Harrison Kamore Kihoro (hereiafter referred to as the applicants) brought the notice of motion dated 3rd March, 2016, inter alia, praying that they be enjoined in the suit herein as interested parties and/or be substituted for the 3rd defendant; review, rescission, variation and/or setting aside the ruling and/or order dated 5th October, 2015 read on 27th October, 2015; stay of execution of the earlier orders of 13th November, 2013; review, variation and/or setting aside of the said orders; a temporary injunction to restrain the 5th respondent or any person acting on his behalf from disposing, alienating, selling or in any other way interferring with L.R No. Chinga/Gathera/S.498 till further orders of this court or maintenance of status quo;cancellation/revocation of the title or registration of L.R No. Chinga Gathera S47 and S48 and reversal, restoration and/or vesting of the land to its original form/status intact.

2. The appication is premised on the grounds that the applicants are the legal representatives of the estate of Kihoro Gachuhi (who is the 3rd defendant in this suit); that as the legal representatives of the estate of the 3rd defendant they have a valid and solid claim over parts of the suit land; that they are in occupation of the parts of the suit property that they have beneficial interest in and that there are sufficient grounds warranting the review of the orders made on 13th October, 2013 and 27th October, 2015.

3. Arguing that the course of justice was perverted by the merger and disposal of the suit properties; the applicants contend that addition of the applicants is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit and to do justice to the parties.

4. The application is supported by the affidavit of the applicants in which they have given a detailed account of the dispute that is the subject matter of their application and tried to justify why the application should be granted.

5. The application is opposed on grounds that it is res judicata the application by the applicants dated 25th November, 2013; that the orders sought are incapable of being granted ( orders are said to be omnibus and poorly crafted); that that there is no pending suit on which the application for joinder can hinge and that there has been inordinate delay in seeking review.

6. In view of the foregoing, the application is said to be frivolous, bad in law and an abuse of the process of the court.

7. When the matter came up for hearing counsel for the applicants, Mr. Muthoni, relied on the grounds on the face of the application and the affidavit sworn in support of the application.

8. Counsel for the 2nd to 6th Respondents, Mr. Ng’ang’a reiterated the contention that the application is res judicata. In support of that contention he referred the court to the ruling delivered on 28th October 2015 in respect of the applicants’ application dated 25th November, 2013 and submitted that allowing the orders sought would be tantamount to sitting on appeal on a decision of a court of concurrent jurisdiction.

9. Arguing that the applicants were not parties to the arbitral award that is the subject matter of the application, counsel for the applicant maintained that the application is not res judicata.

10. From the pleadings filed in the current application, the issues for determination are:-

i. Whether the application dated 3rd March, 2016 is res judicata the application dated 25th November, 2013?

ii. If the answer to (i) above is negative whether the orders sought are capable of being issued?

iii. If the answer to (ii) above is positive, whether the applicants have made up a case for issuance of the orders sought or any of them?

iv. What is the order as to costs?

11. With regard to the first issue, which is capable of determining the application preliminarily, I note that on 26th November, 2013 the applicants filed the application dated 25th November 2013 praying that they be enjoined in the suit herein as interested parties, stay of execution of the orders of 13th October, 2013, review, variation and/or setting aside the said orders.

12. Like in the instant application, in that application, the applicants claimed that they had valid claims to the parcels of land which are the subject matter of the current application. They accused the respondents of alienating the suit properties to their detriment.

13. A review of the above application reveals that the parties to the application and the issues for the court’s determination were virtually similar with those in the current application. The only discernable difference in the two applications is the added prayers and the ground that the applicants are the legal representatives of the estate of Kihoro Gachuhi.

14. This court (read the Environment and Land Court Nyeri) being a court of competent jurisdiction to hear and determine the issues raised in the former application, upon considering the issues raised in that application rendered itself as follows:

“The application herein dated 25/11/2013 wherein Joseph Maina Kihoro and Harrison Kamore Kihoro pray that they be enjoined as interested parties to this suit. The applicants’ claim that they have valid claims over part of the entire suit parcel of land......I have considered the application and the rival submissions of counsel and do find the applicants have clearly not established their interest in the suit as affidavit of Joseph Maina Kihoro does not bring out clearly their rights over the parcel of land. Moreover, the order sought to be reviewed made on 13/10/13 appears not to exist as that can be reviewed as prayed was made on 9/10/13 which the applicants appear to be claiming parts of Chinga/Gathera/S.47 and S.48 which were consolidated and later sold to a third party and therefore the original parcels of land no longer exist. It is clear from the record that after consolidation of the two parcels of land the same was sub-divided and shared between five individuals and the applicants are not amongst the five individuals. The applicants do not seek the review to orders made on 12/10/2004 and therefore cannot claim to have interest in the orders made on 9/10/2013. I do find the applicants’ claim frivolous and without basis. Application dismissed with costs.”

15. After the applicants lost the aforementioned application, they went and obtained letters of administration ad litem of the estate of Kihoro Gachuhi and re-introduced the application that had been dismissed on what appears to be the same grounds.

16. Save from the ground that the applicants now have locus standi, as personal representatives of the estate of their late father, the grounds on which the current application is premised are similar to those in the application dated 25th November, 2013 which was dismissed.

17. As the current application is substantially similar with the former, the issue which arises is whether this court has jurisdiction to hear and determine the issues raised in the current application when those issues were heard and determined by a court of competent jurisdiction vide the former.

18. My answer to that question is that it doesn’t. I say this because under Section 7 of the Civil Procedure Act, this court is prohibited from trying 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.

19. As pointed out above, save for the fact that the applicants’ have since obtained limited letters of administration in respect of the estate of the 3rd defendant and same additional grounds or prayers, the issues raised in the current application are virtually similar to those raised in the former application which issues were heard and finally determined by a court of competent jurisdiction.

20. It is clear from the foregoing that the current application is res judicata the former and to that extend bad in law.

21. Besides being res judicata, I find the orders sought in the application to be incapable of issuing in favour of the applicants because of the multiplicity of relieves sought under the same prayer. In this regard see the case of Pyaralal Mhand Bheru Rajput vs. Barclays Bank &Others Civil Case No.38 of 2004 where it was stated as follows:“There is no doubt the application is an all- cure, omnibus application. It is a wide net cast over a large body of water, and out of all the lake or sea, creatures caught in it, there will be one or two edible crabs or fish. It is not quite so. An omnibus application is incapable of proper adjudication by the court for each of the reliefs sought apart from being governed by different rules, is also subject to long established and different judicial principles which counsel need to bring to the attention of, and the court needs to consider before granting the entire relief sought. This alone makes the plaintiff’s application incurably defective, and a candidate for striking out.”

22. Also see the case of Aviation & Allied Workers Union v. Kenya Airways Limited & 3 Others (2015)eKLR where the Supreme Court observed:-

“…It is improper for a party in its pleadings, to make “omnibus” applications with ambiguous prayers, hoping that the court will grant at least some.”

23. The upshot of the foregoing is that the application is bad in law and for dismissal. Consequently, I dismiss it with costs to the respondents.

Dated, signed and delivered at Nyeri this 19th day of October, 2016.

L N WAITHAKA

JUDGE

In the presence of:

Mr. Muthoni for the applicants

N/A for the respondents

Court assistant - Lydia