[2008] KEHC 2389 (KLR)
The court found that the plaintiff failed to demonstrate any valid title to land parcel BUNGOMA/KAMUKOIWA/2162. The plaintiff's own annexures showed that his title was cancelled by Gazette Notice No.6454/1999 pursuant to a court order, and no evidence was provided to show that the 1st defendant was divested of title...
Source-derived case information.
- Citation
- [2008] KEHC 2389 (KLR)
- Parties
- Plaintiff: Wabululu Mulongo; Defendant: Francis Juma Mutoro; Defendant: Korofia Sichangi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 55 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint
- Outcome
- Plaintiff's suit dismissed with costs; application to strike out plaint allowed.
- Legal Topics
- Ownership Disputes, Title Cancellation, Eviction Orders, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wabululu Mulongo
Plaintiff
Francis Juma Mutoro
Defendant
Korofia Sichangi
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaintiff has a valid title to land parcel BUNGOMA/KAMUKOIWA/2162.
- 2 Whether the plaint discloses a cause of action against the defendants.
- 3 Whether the suit is res judicata.
Ratio Decidendi
The court found that the plaintiff failed to demonstrate any valid title to land parcel BUNGOMA/KAMUKOIWA/2162. The plaintiff's own annexures showed that his title was cancelled by Gazette Notice No.6454/1999 pursuant to a court order, and no evidence was provided to show that the 1st defendant was divested of title or that the land reverted to the plaintiff. Without proof of title, the plaintiff's suit for declaratory, eviction, and injunctive orders could not succeed. The plaint disclosed no cause of action and was therefore a non-starter. The court also held that the issue of res judicata was not established as no supporting documents were annexed. Consequently, the application to...
Court Disposition
Plaintiff's suit dismissed with costs; application to strike out plaint allowed.
Orders
- The plaint is struck out and the suit is dismissed with costs to the defendants.
- The application dated 15-03-2007 is allowed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Civil Suit 55 of 2006
WABULULU MULONGO ::::::::::::::::::::: PLAINTIFF
VRS
1. FRANCIS JUMA MUTORO ::::::::::::::: DEFENDANTS
2. KOROFIA SICHANGI
RULING
The Plaintiff one Wabululu Mulongo filed the suit on 10th April, 2006, seeking inter alia a Declaratory Order to the effect that the defendants’ occupation of land parcel NO.BUNGOMA/KAMUKOIWA/2162 is illegal and unlawful; an eviction order against the defendant and injunctive orders to restrain them from entering or remaining onto that land. His claim is pegged on the registration of himself as the absolute proprietor of that parcel on 3. 4.1998.
According to the defendants’ however, that title does not exist. The 1st defendant’s defence is that the said plot actually belongs to him and he is the registered owner thereof. On that basis, the defendants moved the court under order VI rule 13 (1) b, c & d of the Civil Procedure Rules asking the court to strike out or dismiss the plaintiff’s plaint. That application is dated 15. 3.2007 and this is the ruling in respect of the same. The same is based on the 4 grounds on its face and the affidavit of Francis Juma Mutoro – 1st defendant. He has deponed that the land was transferred to him vide Gazette Notice No.6454/1999 which he has annexed to his application. According to the said annexure, the transfer was done pursuant to a court order in Civil suit No.17 of 1999 which ordered that the land in question be transferred to the 1st defendant. Indeed, annexure
WM 1 which is annexed by the plaintiff to his replying affidavit supports the applicant’s claim that the title in question was transferred to him. According to this annexure, the land was transferred from the 1st defendant to the plaintiff on 3. 4.1998 and the plaintiff was issued with a title deed the same date. (See entry No.6).
According to the entry No.8 however, entry No.6 was cancelled which means that the said title deed was cancelled and this was done on the strength of Kenya Gazzette No.6454 of 19. 11. 99.
As of today therefore, in absence of other evidence to the contrary, the land in question belongs to Francis Juma Mutoro (1st defendant). This information is actually drawn from the plaintiff/applicant’s own annexure. Other than that annexure which is definitely not in his favour, he has not put forward any document to show that the 1st defendant was divested of the said title and the same reverted to him subsequently. As things stand now, the 1st defendant and not the plaintiff/applicant is the rightful owner of the said land. I wish to mention something on the issue of Res Judicata which was raised although the same has no bearing in my finding.
A party who seeks to rely on the doctrine of Res Judicata must present to court evidence that the issues raised in the present suit were raised in a previous suit and that the said issues were in respect of the same parties; in respect of the same subject matter; and that they were heard and determined on merit. It is not enough for a party to just mention a case number and say that the issues were determined in that case. He has to support his claim by annexing the proceedings, order or decree in the previous suit to show that the issues in question were determined. Mr. Waswa’s contention that this matter is Res Judicata was inconsequential in the circumstances.
My finding nonetheless after a careful study of the entire pleadings before me is that the plaintiff has not shown that he has title to the land in question. He has no leg to stand on and on this ground only, his suit is a non-starter. I appreciate the fact that striking out a suit is a drastic and draconian step which should not be taken unless it is clear that the plaintiff’s case is hopeless. Nonetheless, in this case, even if the matter went to full trial, without proof of title to the land, orders of injunction and eviction would never be issued in favour of the plaintiff against the holder of the title to that property. Although the plaintiff refers to an order which rendered the said Gazzette Notice obsolete, he did not annex the said order to his affidavit. We cannot assume its existence. As the case stands now, this case has no life. It cannot be sustained. It is my considered finding that it must fail at this stage. I therefore order that the same be and is hereby dismissed with costs to the defendants’ respondents. The application dated 15-03-2007 is therefore allowed with costs.
W. KARANJA
JUDGE
DELIVERED, Dated and Signed at Bungoma this 23rd day of May, 2008.
In the presence of M/S Mukhongo for Makali for the plaintiff/respondent.