[2021] KEELC 1866 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT KILGORIS LAW COURT

ELC NUMBER 9 OF 2021

SAIPEI NAREIYO LEMAYIAN....................................1ST PLAINTIFF/APPLICANT

NENGOE ENE MAINGUSI...........................................2ND PLAINTIFF/APPLICANT

-VERSUS-

OLOIRIEN GROUP RANCH.................................1ST DEFENDANT/RESPONDENT

JAMES TEMEI........................................................2ND DEFENDANT/RESPONDENT

JULIUS KAIPAI KAYIONI....................................3RD DEFENDANT/RESPONDENT

JOSHUA TEMEI SAITOTI....................................4TH DEFENDANT/RESPONDENT

SHADRACK LETEIPA TIKAN.............................5TH DEFENDANT/RESPONDENT

OLOIRIEN LAND CARE LIMITED....................6TH DEFENDANT/RESPONDENT

SAMWEL LEKISHON SONORWA......................7TH DEFENDANT/RESPONDENT

PUTAA OLE TOGOM............................................8TH DEFENDANT/RESPONDENT

HON.ATTORNEY GENERAL...........................................................9TH DEFENDANT

LAND REGISTRAR TRANS-MARA SUB-COUNTY...................10TH DEFENDANT

SURVEYOR TRANS-MARA SUB-COUNTY.................................11TH DEFENDANT

LAND ADJUDICATION OFFICER

TRANS-MARA SUB-COUNTY........................................................12TH DEFENDANT

RULING

The 1st and 2nd Plaintiff’s herein filed a Plaint dated 25th November 2020 against the 1st to the 12th Defendant on the 7th of December 2020 (hereinafter referred to as “the Plaint”).

The 1st and 2nd Plaintiffs are the widows and representatives of the estate of Lemayian Naliki Ole Maigusie (Deceased) who is the registered owner of the property known as Land Reference Number TRANS-MARA/OLOIRIEN/24 (hereinafter referred to as “the suit property”).

The 1st and 2nd Plaintiffs allegations is that initially, the Late Lemaiyan Naliki Ole Maiguse(Deceased) suit property was measuring 160 Hectares which was accordingly provided for in the Title Deed issued on the 27th April 2004 pursuant to Registry MapSheet No.144/4.

Upon the demise of the Late Lemaiyan Naliki Ole Maiguse(Deceased), the survivors and/or beneficiaries of the estate commenced the succession process and consequently the transmission of the title from the name of the Late Lemaiyan Naliki Ole Maiguse(deceased) into their names.

The 1st and 2nd Plaintiff state that upon surrendering the original Title Deed of the suit property in the name of the Late Lemaiyan Naliki Ole Maiguse (Deceased) measuring approximately 160 Hectares for Transmission, the new Title Deed to the suit property re-issued is now approximately 123. 77 Hectares and not the original 160 Hectares.

The 1st and 2nd Plaintiff’s cause of action is that the purported resurveying of the suit property and creation of new parcels of land namely TRANS-MARA /OLOIRIEN/1307,1309,1310,1311,1312,1314 AND 1315 was unlawful , illegal and without color of right, justification ,authority and consent of either the 1st and 2nd Plaintiff or the Land Control Board and thereby anullity and illegal abinition.

Upon service of the Plaint dated 25th November 2020, the 1st to the 8th Defendants filed a Defence dated 21st January 2021.

In the 1st to 8th Defendant’s Defence dated 21st January 2021, Paragraph 6 contained therefore confirms that indeed the suit property known as TRANS-MARA/OLOIRIEN/24 belonged to the Late Lemaiyan Naliki Ole Maiguse (Deceased) and was at the time of his demise measuring approximately 160 Hectares.

The 1st to 8th Defendant further allege in the same paragraph 6 of the Defence dated and filed on the 21st January 2021 that the suit property known as TRANS-MARA/OLOIRIEN/24 had an error on record which showed the acreage to be 160 Hectares .

The 9th, 10th, 11th and 12th Defendants have not entered Appearance or filed any Defences to this suit and am not sure even if they have been duly served thereof.

PRELIMINARY OBJECTION DATED 21ST JANUARY 2021.

On the date of filing the Defence dated 21st January 2021, the 1st to the 8th Defendants/Applicants herein filed a Preliminary Objection.

The gist of the Preliminary Objection dated 21st January 2021 is that this suit is Sub-Judice against the 1st Defendant as there is another suit namely ELC 500 of 2017 between Saipei Nareyo Lemayian & 2 Others –Versus- Land Registrar Kilgoris ( 10th Defendant in this present suit ) & Oloirien Group Ranch ( 1st Defendant in this present suit ).

Similarly, this present suit has been filed in contravention of Section 6 of the Civil Procedure Act and therefore this Honourable court lacks jurisdiction to grant the prayers in the Plaint as the same are Res Judicata in view of the ruling delivered by the Court in regards to the Joinder of the 2nd , 3rd, 4th ,5th ,6th , 7th , 8th ,9th ,11th and 12th Defendants.

The relief sought by the 1st to the 8th Defendants is that this suit be struck out forthwith.

ANALYSIS OF THE FACTS AND THE LAW.

As earlier indicated hereinabove, this ruling is purely on the issues raised in the Preliminary Objection dated 21st January 2021 which in the view of the Court are as follows;-

a) Whether or not this suit is Sub-Judice against the 1st and 10th Defendant in this present suit.

b) Whether or not this suit is Res-Judicata against the 2nd, 3rd, 4th ,5th ,6th, 7th ,8th ,9th ,11th and 12th Defendants.

c) Whether or not this Suit should be dismissed by virtue of the finding on the Preliminary Objection dated 21st January 2021.

ISSUE NUMBER A.

The Principles that guide the Courts in making determinations on issues regarding Sub-Judice were clearly provided for by the Supreme Court of Kenya in the case of Kenya National Commission on Human Rights –Versus- The Attorney General ;Independent Electoral & Boundaries Commission & 16th Others (Interested Parties) wherein as correctly captured in the Plaintiff’s Submission stated as follows;-

“A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter;that one suit was instituted before the other;that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

The first principle in evaluating if a matter is Res Sub-Judice is to establish whether or not there is more than one suit over the same subject matter.

In this particular matter, the 1st to 8th Defendants/Applicants have averred the existence of another suit namely NAROK ELC CASE NUMBER 500 OF 2017 BETWEEN SAIPEI LEMAYIAN NAREYO & ANOTHER-VERSUS- THE LAND REGISTRAR KILGORIS & ANOTHER.

The 1st to 8th Defendants contention is that the above mentioned suit relates to the same parties and subject matter as in this present suit.

Nevertheless, the 1st to the 8th Defendant failed to confirm and/or prove to the Court whether or not this suit is ongoing.

According to the 1st and 2nd Plaintiffs/Respondents submissions dated 23rd July 2021, there is submission that the entire suit was withdrawn on the 22nd March 2021 pursuant to a Notice of Withdrawal filed in court on the 23rd of February 2021.

This submission by the 1st and 2nd Plaintiffs’/Respondents Counsel has not been challenged by the 1st to 8th Defendants/Applicants Counsel.

The Honourable Court has also had an opportunity to look at the directions of 22nd March 2021 as regards NAROK ELC CASE NUMBER 500 OF 2017 BETWEEN SAIPEI LEMAYIAN NAREYO & ANOTHER –VERSUS LAND REGISTRAR KILGORIS & ANOTHER before my brother Honourable Justice Mohamed N.Kullow and note that the following Orders were made therein;-

1. That since a notice of withdrawal dated 23rd February 2021 was filed by Counsel for the Plaintiffs , this matter is marked as withdrawn.

2. The Defendants may appropriately move the court to pursue the issue of the payments of costs.

This Honourable Court having verified and confirmed the above directions, it is the finding of this court that the proceedings known as the NAROK ELC CASE NUMBER 500 OF 2017 BETWEEN SAIPEI LEMAYIAN NAREYO & ANOTHER –VERSUS LAND REGISTRAR KILGORIS & ANOTHER were withdrawn and the file closed save for the issue of costs.

In other words, this suit is the only matter in a court of law and therefore can not be res-subjudice.

Prayer number (a) on the Preliminary Objection dated 21st January 2021 is dismissed with costs.

ISSUE NUMBER B.

Whether or not this suit is Res-Judicata against the 2nd, 3rd, 4th ,5th ,6th, 7th ,8th ,9th ,11th and 12th Defendants.

The doctrine of Res Judicata is provided for in law under Section 7 of the Civil Procedure Act (2010) which reads as follows;-

“No Court shall try any suit or issue in which the matter directly and substantively 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.”

On the interpretation of this Section, the Court of Appeal in the Case of The Independent Electoral and Boundaries Commission-Versus – Maina Kiai & 5 Others, Nairobi CA Civil Appeal No.5 of 2017 (2017) eKLR, the Court held as follows; -

“Thus, for the bar of Res Judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disinjuctive but conjunctive terms;

a) The suit or issue was directly and substantively in issue in the former suit.

b) That the former suit was between the same parties or parties under whom they or any of them claim.

c) Those parties were litigating under the same title.

d) The issue was heard and determined in the former suit.

e) The Court that formerly heard and determined the issue was competent to try the subsequent suit or the suit which the issue was raised.”

As earlier captured, the 1st and 2nd Plaintiff’s attempt to enjoin the 2nd, 3rd,4th ,5th ,6th ,7th and 8th in the proceedings namely NAROK ELC CASE NUMBER 500 OF 2017 BETWEEN SAIPEI LEMAYIAN NAREYO & ANOTHER –VERSUS- LAND REGISTRAR KILGORIS & ANOTHER before the hearing of the main suit was done did not succeed.

Technically speaking therefore, the parties that were in the previous proceedings namely NAROK ELC CASE NUMBER 500 OF 2017 BETWEEN SAIPEI LEMAYIAN NAREYO & ANOTHER –VERSUS- LAND REGISTRAR KILGORIS & ANOTHER were the 1st Defendant/ Applicant and 10th Defendant.

The 2nd , 3rd ,4th ,5th ,6th ,7th ,8th ,9th, 11th and 12th Defendants are not in any proceedings with the 1st and 2nd Plaintiffs herein.

Similarly, the Application for enjoinment which did not succeed had not adjudicated on the merits of the various ownership issues including cross accusation of fraud, error on the record and/or misrepresentation regarding the suit property known as TRANS-MARA/OLOIRIEN/24.

In other words, the issue of ownership of the property known as TRANS-MARA/OLOIRIEN/24 has not been heard and determined by any court of competent jurisdiction.

Consequently, this Honourable Court holds that the proceedings against 2nd , 3rd ,4th , 5th , 6th ,7th and 8th are not Res-Judicata and this Court has jurisdiction to hear and determine the issues against the 1st to the 8th Defendant.

Ground Number (b) of the Preliminary Objection dated 21st January 2021 is hereby dismissed with costs.

ISSUE NUMBER C

Whether or not this Suit should be dismissed by virtue of the finding on the Preliminary Objection dated 21st January 2021.

This Honourable court having found that there is no other pending suit on the same subject matter by the same parties in any Court of similar competent jurisdiction, the Honourable Court dismisses the entire Preliminary Objection dated 21st January 2021 with costs to the 1st and 2nd Plaintiff/Respondents thereof.

DELIVERED IN KILGORIS ELC COURT ON THE 30TH DAY OF SEPTEMBER, 2021.

HON.EMMANUEL.M.WASHE

JUDGE