[1938] EACA 178

## ORIGINAL CIVIL

### Before THACKER, J.

#### KANGANGI s/o KARYO. Plaintiff

# 1. GATHERU s/o WANJAU; 2. MUGATHIGIA s/o KARYO, Defendants

## Civil Case No. 87 of 1939

## Res judicata-Decision of Native Tribunal-Civil Procedure Ordinance, 1924, section 7.

First defendant in proceedings taken before a Native Tribunal obtained an order against plaintiff's elder brother, the second defendant, declaring that the first defendant was entitled to certain land. The plaintiff was not a party to these proceedings.

The plaintiff then sued the defendants in this Court for a declaration that the said land belonged to the plaintiff and the second defendant and his other brothers and collaterals or that he and these relatives were jointly entitled to the beneficial use and enjoyment of the said land.

The plaintiff claimed under the same title that the second defendant had sought to prove in the proceedings before the Native Tribunal.

Held (7-12-39).—The principles of res judicata as laid down in section 7 of the Civil Procedure Ordinance, 1924, apply to the decisions of Native Tribunals and that they applied to this case.

Suit dismissed with costs.

Kumone wa Njonge v. Githungu wa Njau (C. C. No. 116/1939) unreported followed.

Kapila for the Plaintiff.

Malcomson for the First Defendant.

JUDGMENT.—The parties to this suit are natives and each is represented by an advocate.

The plaintiff has joined his full brother Matu as co-defendant with Gatheru the first defendant. The plaintiff's case is that together with defendant No. 2 and his other brothers and nephews he has been in joint possession as a private right-holder from time immemorial of an area of land in the Nyeri District Native Reserve as shown in the plan attached to the plaint and marked "A" and coloured red. In his statement of claim the plaintiff claims that defendant No. 1, alleging himself to be the decree-holder in a Native Tribunal civil case brought by him against defendant No. 2 to which the plaintiff was not a party, recently obtained forcible possession of a portion of the said land marked "B". The plaintiff states that defendant No. 2 is also entitled to the whole piece of land marked "A" jointly with the plaintiff and others and has therefore been joined in this. suit as a *pro forma* defendant.

The plaintiff's claim is for a declaration that the land marked "A" belongs to plaintiff and defendant No. 2 and his other brothers and collaterals or that he and these relatives are jointly entitled to the beneficial occupation and use and enjoyment of it.

The defendant's defence is that he has not trespassed on any land of the plaintiff and further that the matter is res judicata having been the subject of a decision by a Native Tribunal; further that the dispute was finally disposed of in Appeal No. 4 of 1939 before the Provincial Commissioner, Nyeri, and is therefore res judicata. There are other objections in the defence inter alia that the brothers and nephews ought to have been joined as parties to the suit.

The defendant No. 1 states that he is the owner in possession of the portion of land claimed in the plaint, namely, that portion marked "B" on the plan.

The second defendant has not entered any appearance to this suit.

The evidence on both sides showed that the defendant No. 1 has not forcibly taken possession of the land in dispute. The plaintiff himself admitted that his relatives are still in possession of the disputed land, but asks for a declaration of his alleged right or title.

Dealing with the matter of whether or not the plaintiff is estopped from proceeding with this suit by reason of the matter having been finally disposed of before the Native Tribunal and on appeal before the Provincial Commissioner, the facts show that the first defendant Gatheru in 1938 brought an action against Matu the full brother of the present plaintiff in the court of the Native Tribunal which suit covered the same piece of land which is now in dispute in this case. Gatheru did not succeed in the whole of his claim but the Native Tribunal awarded him that piece which is marked "B" on the plan, and fixed the boundaries between Matu's land and Gatheru's as the land which I have marked on the plan D. K. E. Gatheru was not wholly satisfied with the decision and appealed to the Central Native Tribunal who, it appears, dismissed the appeal confirming the decision of the Native Tribunal. Gatheru again appealed to the District Commissioner with the same result and from that decision he appealed to the Provincial Commissioner at Nyeri and the record of the proceedings in that appeal together with the judgment delivered appear as an exhibit in this case. The Provincial Commissioner upheld the decisions of the lower courts.

Now as I have stated these proceedings were litigation between not the present plaintiff and Gatheru but between the present plaintiff's full and elder brother and Gatheru. It is admitted in the proceedings before me by both parties that the courts above referred to were concerned with identically the same piece of land as is now in dispute before me, namely that portion marked "B" on the plan. It is, however, stated by Mr. Kapila for the plaintiff that the parties were not the same, and to some extent this is true, but the plaintiff himself in his plaint asks for a declaration not only that he is entitled to the land but that his other brothers and collaterals which include Matu his elder brother are entitled to that land; and it is by no means clear from the statement of claim, for which no leave to amend was asked, whether or not the plaintiff is suing on his own behalf or on behalf of himself and his brothers and collaterals. Be

that as it may, and it is not necessary to come to any decision upon that particular point, I have had the advantage of reading the judgment of Sir Charles Belcher, Acting Judge, in Civil Case No. 116 of 1939, Kamoni wa Njonge v. Githungo wa Njau, which was a somewhat similar case to the one before me. Different parties appeared before the Supreme Court from those who appeared before the Native Tribunal and Central Tribunal, but the parcel of land in dispute in the Supreme Court was the same parcel of land as was in dispute in the lower courts, and the learned judge found that the principle of *res judicata* applied on the facts before him and it is obvious to me that the same principle applies to the fact which I have heard here in evidence. Indeed this is a stronger case because I have had the advantage of advocates appearing on behalf of the parties and the pleadings disclose the previous proceedings in the lower court whereas in the case before Sir Charles Belcher no mention was made of the proceedings in the lower court and the fact that there had been such proceedings was only elicited with some trouble from the various witnesses. I quote the following from the judgment of Sir Charles Belcher: -

"It can hardly be wondered at that the present plaintiff felt at this stage that he ought to have some right of appeal to the Supreme Court, and that the prior proceedings were so futile and unsatisfactory that the time of the higher tribunal ought not to be taken up with any reference to them. But however unsatisfactory to the plaintiff, the very dispute he now seeks to resuscitate was clearly disposed of (in one or other of the appeal cases above referred to, and it is not necessary to decide in which) by a Court of Appeal duly constituted so far as appears under section 33 (1) of the Native Tribunals Ordinance, 1930: the plaintiff if aggrieved might have taken the steps laid down in that Ordinance so as finally to reach the Provincial Commissioner, but there is no provision in the law for any appeal from a Native Appeal Tribunal direct to the Supreme Court, while if this case is regarded as one of first instance the unanswerable defence is that it has already been disposed of by a tribunal having jurisdiction: it is res judicata."

Section 7 of the Civil Procedure Ordinance, 1924, and Explanation No. 6 contain the law applicable to this case. They are as fol $lows:$

"7. 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 subsequent suit or the suit in which such issue has been subsequently raised. and has been heard and finally decided by such court."

"Explanation (6).—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."

Mr. Kapila argues that the Native Tribunal had no power to entertain a suit for declaration of title, whilst this Court has, and that therefore the principle of res judicata does not apply. The answer to this is that, according to section 7, the matter has to be one directly and substantially in issue. The matter before me is substantially the same as was before the Native Tribunals.

I hold therefore as the land now in dispute has been the subject of proceedings before the Native Tribunal, Central Tribunal, the District Commissioner and the Provincial Commissioner, between the present defendant and the elder full brother of the present plaintiff. and the plaintiff is claiming under the same title as his brother, that the plaintiff is estopped from proceeding in this action and that the matter is res judicata.

Any other decision would make the way clear for each of the numerous relatives of the plaintiff going through the long procedure through the various lower courts and if unsuccessful bringing separate actions before this Court.

Mr. Kapila has cited in support of his argument that the plaintiff is entitled to sue in this Court the case of Stanley Kahahu sjo Wangati and Komoindi, Wakaiya and Thairo, all sons of Kinyanjui v. (1) Anderea s/o Waiganjo and (2) The Honourable the Attorney General (1938) 18 K. L. R. 5, which was a case tried by me. I confess that I am quite unable to see how the judgment in this case can be cited in support of Mr. Kapila's argument. The judgment decided that the Supreme Court has jurisdiction in suits and matters relating to rights in land in Native Reserves and in no sense whatever is the judgment an authority for saying that after a native has brought an action before the native tribunal and proceeded through the various courts of appeal he is entitled to commence a fresh action in this Court. . Moreover the last paragraph of my judgment specifically points out that the issue of res judicata was not decided in that case. Had the land which is the subject of the dispute before me been the subject of an entirely new action in this Court without any decision by the Native Tribunal and the appeal courts no doubt this Court could have entertained the suit. . . I am afraid that this decision which I am compelled to give, and I can see no justification for departing from the reasoning of the learned Sir Charles Belcher in the case that I have cited, may be a hardship on the present plaintiff because if it were not for the fact that he is estopped by the res judicata principle I should undoubtedly have found on the facts for him at least to the extent that he would be entitled to a declaration that he has the right to live on the land which is in dispute and that defendant No. 1 has not such right. In other words the plaintiff and his witnesses satisfied me as being honest and truthful people whereas I was not impressed by the demeanour or evidence of the defendant or his witnesses. The evidence given by the plaintiff and his witnesses satisfied me whilst I was not by any means convinced of the truth of what the defendant and his witnesses were saying. In this connexion I would say I was most impressed with the evidence of Muriuki, who in spite of past litigation with the plaintiff neverthe less testified in his favour in this action. This expression of opinion, however, can be of little value to the plaintiff seeing that I am bound to hold that he is estopped by reason of the proceedings before and decision given by the native court from proceedings in this action.

There must be judgment therefore for the first defendant with costs.