[2019] KEELC 778 (KLR)
The court found that the previous proceedings cited by the defendants, namely the awards of the Land Disputes Tribunal and the Appeals Committee, were quashed by the High Court for want of jurisdiction. As such, these proceedings are nullities and do not qualify as previous suits for the purposes of the doctrine of...
Source-derived case information.
- Citation
- [2019] KEELC 778 (KLR)
- Parties
- Plaintiff: Said Ali Mwaleso; Defendant: Abdalla Ali Mwanga'o; Defendant: Abdalla Ali Mwakutunza
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 198 of 2018
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Legal Topics
- Res Judicata, Land Disputes Tribunal Awards, Jurisdiction, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Ali Mwaleso
Plaintiff
Abdalla Ali Mwanga'o
Defendant
Abdalla Ali Mwakutunza
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata due to previous proceedings.
- 2 Whether quashed awards of the Land Disputes Tribunal constitute previous suits for purposes of res judicata.
Ratio Decidendi
The court found that the previous proceedings cited by the defendants, namely the awards of the Land Disputes Tribunal and the Appeals Committee, were quashed by the High Court for want of jurisdiction. As such, these proceedings are nullities and do not qualify as previous suits for the purposes of the doctrine of res judicata. The court further noted that there was no evidence of pleadings or determination in Kwale SRMCC No. 363 of 2010. Therefore, the requirements for res judicata under Section 6 of the Civil Procedure Act were not met, and the preliminary objection was without merit.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
ELC NO. 198 OF 2018
SAID ALI MWALESO............................................ PLAINITFF
VERSUS
ABDALLA ALI MWANGAO........................1ST DEFENDANT
ABDALLA ALI MWAKUTUNZA...............2ND DEFENDANT
RULING
(Preliminary objection that suit is res judicata; previous suits cited being awards of the Land Disputes Tribunal; the awards quashed meaning that they do not qualify as previous suits; preliminary objection dismissed)
1. This ruling is in respect of a preliminary objection raised by the defendants. The defendants contend that this suit is res judicata and contrary to Section 6 of the Civil Procedure Act, Cap 21, Laws of Kenya. Three previous suits are cited, that is, Kwale SRMCC Land Case No. 4 of 2003 and Kwale SRMCC No. 363 of 2010, and High Court Miscellenous Application No. 58 of 2011 (JR).
2. To put matters into context, this suit was commenced through a plaint which was filed on 7 September 2018. The plaintiff has claimed that he is the registered owner and entitled to possession of the land parcel Kwale/Maweche/89 measuring 30 Ha. He has averred that the defendants have trespassed into the suit land and in the suit, he wants vacant possession of the land and an order of permanent injunction against the defendants. Within the plaint, he actually cited the three suits mentioned in the preliminary objection.
3. I have come to understand that the matter was previously before the Msambweni Land Disputes Tribunal which made an award that was adopted in Kwale SRMCC Land Case No. 4 of 2003. An appeal was filed before the Coast Province Appeals Committee pursuant to the Land Disputes Tribunal Act (now repealed). These decisions were quashed in Mombasa High Court Miscellaneous Application No. 58 of 2011 (JR) where the court, in a ruling delivered on 14 September 2012, held that the Land Disputes Tribunal and the Appeals Committee had no jurisdiction to determine the dispute. I have not been shown any pleadings in respect of Kwale SRMCC No. 363 of 2010.
4. Given the above, is this case res judicata ? Certainly not. The past decisions that the defendant is claiming are previous suits which were all declared a nullity. It is as if they were never filed and decided ab initio and do not qualify as previous suits for res judicata to apply.
5. There is no need of saying more.
6. There is no merit in this preliminary objection and it is dismissed with costs.
7. Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA this 12th day of November 2019.
_______________
MUNYAO SILA,
JUDGE.
IN THE PRESENCE OF:
Mr. Ajigo holding brief for Mr Mwarandu for the plaintiff.
Ms. Naliaka holding brief for Mr Mutubia for the defendants.
Court Assistant; David Koitamet.