[2012] KEHC 1793 (KLR)
The court found that the plaintiff's claim to parcel 1155 was res judicata, as it had already been conclusively determined in previous litigation between the same parties, and any further suit over the same parcel was barred. Regarding parcel 1161, the court held that the plaintiff's own sworn affidavit admitted...
Source-derived case information.
- Citation
- [2012] KEHC 1793 (KLR)
- Parties
- Plaintiff: Zebnisha M. Bachoo; Defendant: Sophia Shabram; Defendant: Ashiraf Murunga Shabram; Defendant: Hassannali Babushabram; Defendant: Razia Shabram; Defendant: Shenanazi Shabram; Defendant: Noor M. Abdul; Defendant: Ashiraf Murunga Shabram (on behalf of Roshan M. Abdul, minor)
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 137 of 2010
- Procedural Posture
- Civil Case / Ruling on Applications to Amend Plaint and to Strike Out Suit
- Outcome
- Plaintiff's application dismissed; defendants' application allowed; suit struck out with costs.
- Judges
- AO Muchelule
- Legal Topics
- Res Judicata, Fraudulent Transfer, Land Ownership, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zebnisha M. Bachoo
Plaintiff
Sophia Shabram
Defendant
Ashiraf Murunga Shabram
Defendant
Hassannali Babushabram
Defendant
Razia Shabram
Defendant
Shenanazi Shabram
Defendant
Noor M. Abdul
Defendant
Ashiraf Murunga Shabram (on behalf of Roshan M. Abdul, minor)
Defendant
Procedural Posture
Civil Case / Ruling on Applications to Amend Plaint and to Strike Out Suit
Legal Issues
- 1 Whether the plaintiff's suit is barred by the doctrine of res judicata in respect of parcel 1155.
- 2 Whether the plaintiff's claim regarding parcel 1161 is sustainable in light of her own sworn affidavit contradicting the plaint.
- 3 Whether the applications to amend the plaint and to strike out the suit should be allowed.
Ratio Decidendi
The court found that the plaintiff's claim to parcel 1155 was res judicata, as it had already been conclusively determined in previous litigation between the same parties, and any further suit over the same parcel was barred. Regarding parcel 1161, the court held that the plaintiff's own sworn affidavit admitted that her late husband had voluntarily transferred the land, directly contradicting the plaint's assertion of a forced transfer. This contradiction rendered the claim unsustainable and an abuse of the court process. Consequently, the plaintiff's application to amend the plaint was dismissed, and the defendants' application to strike out the suit was allowed. The entire suit was...
Court Disposition
Plaintiff's application dismissed; defendants' application allowed; suit struck out with costs.
Orders
- Plaintiff's application dated 9/2/2011 is dismissed with costs.
- Defendants' application filed on 30/5/2011 is allowed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Case 137 of 2010
ZEBNISHA M. BACHOO.........................................................................................................................PLAINTIFF
~VRS~
SOPHIA SHABRAM..............................................................................................1ST DEFENDANT (DECEASED)
ASHIRAF MURUNGA SHABRAM..............................................................................................2ND DEFENDANT
HASSANNALI BABUSHABRAM...............................................................................................3RD DEFENDANT
RAZIA SHABRAM........................................................................................................................4TH DEFENDANT
SHENANZI SHABRAM.................................................................................................................5TH DEFENDANT
NOOR M. ABDUL.........................................................................................................................6TH DEFENDANT
ASHIRAF MURUNGA SHABRAM (Sued on behalf of ROSHAN M. ABDUL (MINOR)......7TH DEFENDANT
RULING
On 21/12/2010 the Plaintiff filed this suit seeking land parcels nos. South Teso/Osurette/1155 and 1161 from the Defendants. In respect of parcel 1155 the complaint was that she was gifted it by her late father following which she became the registered owner but that her late mother fraudulently transferred it to herself and subsequently quietly subdivided it into six portions which she transferred to the respective Defendants. As for parcel 1161, her case was that it belonged to her late husband who was forced to transfer it to the 2nd and 3rd Defendants and three other people who are now deceased. She sought a declaration that she was the lawful owner of the parcels whose present registrations she sought to be cancelled and be restored to her or to the original owner (as for 1161). The Defendants entered appearance and filed a defence.
On 9/2/2011 the Plaintiff filed an application to amend the plaint. She was basically asking that she abandons her claim to parcel 1155 and be left to pursue the claim to parcel 1161. On the face, this was a harmless request. However, the Defendants defended it and on 30/5/2011 filed their own application seeking to have the entire suit struck out for being an abuse of the process of the court and an effort to embarrass the court. It was also claimed the suit was res judicata.It was agreed that the two applications be taken together. Counsel filed respective submissions which I have considered.
Proceedings in Busia SPMCC no.35 of 1989 were availed by the Defendants to show that the 1st Defendant successfully sued the Plaintiff and others over land parcel 1155. An effort was unsuccessfully made in HCCA no.200 of 2011 at Busia to appeal the decision. It follows that any subsequent suit between the parties, or those claiming under them, over this parcel would be res judicata.
Regarding parcel 1161, the Defendants annexed an affidavit sworn on 31/10/2011 by the Plaintiff in which she had deponed as follows in paragraph 2:
“2. That after carefully going through the letter of parcels from Busia Land Registrar, I found out that indeed my late husband Musafarali Bachoo Ruplal signed the transfer of the land parcel no.South Teso/Osurette/1161 to his late brother Omar Shabram Ruplal children willingly, freely and voluntarily on 23rd of May 1986 as per the records.”
In paragraph 10 of the plaint herein the Plaintiff claimed parcel 1161 belonged to her late husband Muzafarali M. Bachu Ruplal which he was forced to transfer to the 2nd and 3rd Defendants, among others. That plea runs against her sworn evidence and would therefore be unsustainable. To allow such a plea to proceed to hearing would be a waste of time and an abuse of the process of the court.
The result is that the Plaintiff’s application dated 9/2/2011 has no merit and is dismissed with costs. The Defendants’ application filed on 30/5/2011 is allowed with costs. The Plaintiff’s suit is struck out with costs for being res judicata and an abuse of the process of the court.
Dated, signed and delivered in open court this 1st day October, 2012.
A.O. MUCHELULE
JUDGE