[2009] KEHC 504 (KLR)
The court found that the previous suit was not heard and determined by a court of competent jurisdiction because part of the case was heard before the Resident Magistrate, who lacked jurisdiction under Section 159 of the Registered Land Act. Furthermore, the dismissal by the Court of Appeal was not on the merits of...
Source-derived case information.
- Citation
- [2009] KEHC 504 (KLR)
- Parties
- Plaintiff: Stephen Waweru; Defendant: The Committee Nyandundo Primary School; Defendant: Director of Settlement
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 232 of 2001
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled; suit to proceed to hearing on merits
- Legal Topics
- Res Judicata, Jurisdiction of Courts, Transfer of Suits, Land Allocation Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Waweru
Plaintiff
The Committee Nyandundo Primary School
Defendant
Director of Settlement
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is barred by the doctrine of res judicata.
- 2 Whether the previous suit was heard and determined by a court of competent jurisdiction.
- 3 Whether the previous dismissal was on merit or on a technicality.
Ratio Decidendi
The court found that the previous suit was not heard and determined by a court of competent jurisdiction because part of the case was heard before the Resident Magistrate, who lacked jurisdiction under Section 159 of the Registered Land Act. Furthermore, the dismissal by the Court of Appeal was not on the merits of the case but on a technicality regarding jurisdiction. Therefore, the doctrine of res judicata does not apply, and the current suit is not barred. The preliminary objection is overruled, and the suit is to proceed to hearing and determination on its merits.
Court Disposition
preliminary objection overruled; suit to proceed to hearing on merits
Orders
- The preliminary objection is overruled.
- The suit shall be set down for hearing and decided on merit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Civil Suit 232 of 2001
STEPHEN WAWERU……………………………...PLAINTIFF
VERSUS
THE COMMITTEE
NYANDUNDOPRIMARY SCHOOL…..…..1ST DEFENDANT
DIRECTOR OF SETTLEMENT….………..2ND DEFENDANT
RULING
The defendant has raised a preliminary objection seeking to have this suit struck out on the ground that the matter is res judicata. The objection is based on the ground that the plaintiff had earlier on filed Nakuru HCC No. 391 of 1994 against the same defendants but the Court of Appeal in Civil Appeal No. 179 of 1999 dismissed his claim with no order as to costs.
Mr. Kimatta for the plaintiff urged me to overrule the preliminary objections as ill conceived because his client’s case was dismissed on a technicality and the matter was therefore not decided on merit.
The history of this matter is briefly this. The plaintiff filed a suit in the Resident Magistrate’s court at Nakuru complaining that his pieces of land had been allocated by the 2nd defendant to the 1st defendant. After the plaintiff’s case had been fully heard his advocate realized that the Resident Magistrate’s court did not have jurisdiction. He managed to convince the defendant and had the suit transferred to the High Court by consent. In the High Court the parties consented to having the hearing continue from where the Resident Magistrate had left it. After hearing the case the High Court granted the plaintiff the declaration he sought thus provoking Civil Appeal No. 179 of 1999 to the Court of Appeal in which, as I have said, the Plaintiff’s claim was dismissed with no order as to costs.
Section 7 of the Civil Procedure Act is very clear as to when a matter is res judicata. It reads:-
“No court shall try 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 a subsequent suit or the suit in which such a issue as been subsequently raised, and has been heard and finally decided by such a court.”
It is clear from this provision that for the matter to be res judicata the court trying the former suit must have been a court competent to try it.
I have read the judgment of the Court of Appeal in the said appeal. The appeal was allowed and the plaintiff’s claim was dismissed on the ground that part of the case was heard before the Resident Magistrate who by virtue of Section 159 of the RegisteredLandAct Cap 300 of the Laws of Kenya did not have jurisdiction to hear it. It therefore follows that the former suit was not heard by a court of competent jurisdiction. Besides this the matter was not decided on merit. A matter is res judicata when the former suit was heard and decided on merit – Kibogy Vs Chemweno [1981] KLR 35 and Wangulu Vs Kania [1987] KLR 51. Consequently I find that the matter is not res judicata and I accordingly overrule the preliminary objection. The suit shall be set down for hearing and decided on merit.
DATED and delivered this 18th day of November, 2009.
D. K .MARAGA
JUDGE.