Case ID:168917

Mary Wanjiru Mwaniki & another v Peter Anjeyo Vohya & another; Paul Kamau Mwangi (Interested Party) [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 24 of 2012

Parties:

Mary Wanjiru Mwaniki & Michel Ndungu Mwaniki v Peter Anjeyo Vohya & Cresters Kuloba Wambu; Paul Kamau Mwangi (Interested Party)

Date Delivered:

18 Jan 2021

Case Class:

Civil

Court:

Environment and Land Court at Bungoma

Case Action:

Ruling

Judge(s):

Boaz Nathan Olao

Citation:

Mary Wanjiru Mwaniki & another v Peter Anjeyo Vohya & another; Paul Kamau Mwangi (Interested Party) [2021] eKLR

Court Division:

Environment and Land

County:

Bungoma

Case Outcome:

Suit dismissed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC CASE NO. 24 OF 2012

MARY WANJIRU MWANIKI.....................................................1

ST

PLAINTIFF

MICHEL NDUNGU MWANIKI.................................................2

ND

PLAINTIFF

VERSUS

PETER ANJEYO VOHYA........................................................1

ST

DEFENDANT

CRESTERS KULOBA WAMBU.............................................2

ND

DEFENDANT

AND

PAUL KAMAU MWANGI...............................................INTERESTED PARTY

R U L I N G

This ruling is in respect to the first limb of the 2

nd

defendant’s Notice of Motion dated 16

th

January 2018 in which he seeks the following orders: -

(a) Spent

(b) That this Honourable Court be pleased to find that this suit is res – judicata BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006 and the same should be struck out.

(c) Spent

(d) Costs of this application and suit be borne by the plaintiffs.

The application is predicated on the provisions of Section 7 of the Civil Procedure Act and is founded on the grounds set out therein and is also supported by the affidavit of

CRESTERS KULOBA WAMBU

the 2

nd

defendant herein. The other limb of the application which questioned the jurisdiction of this Court to handle this suit in view of the provisions of

Section 18

of the

Land Registration Act

was earlier determined via my ruling dated 22

nd

November 2018.

The gravamen of the application is that the plaintiffs’ suit touches on the boundary dispute between the land parcels

NO EAST BUKUSU/SOUTH KANDUYI 1596

and

8830

which was infact the subject of

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

which was heard and determined on 4

th

November 2014. That appeal arose from the decision of the

DISTRICT LAND REGISTRAR BUNGOMA

which was adopted in

BUNGOMA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL APPLICATION No 157 of 2006

and related to the same parties or parties under whom they claim. That this Court cannot therefore try this suit as the matters directly and substantially in issue have been directly and substantially in issue in another suit which has been heard and determined. Therefore, this suit contravenes the provisions of

Section 7 of the Civil Procedure Act

.

In opposing the application, the 1

st

plaintiff and with the authority of the 2

nd

plaintiff filed a replying affidavit dated 23

rd

February 2018 in which she deponed, inter alia, that this application is not only incompetent but is also an abuse of the Court process intended to circumvent and frustrate the orders of this Court issued on 7

th

November 2017. That this suit is not res – judicata because the decision in

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

was in respect to the land parcels

NO EAST BUKUSU/SOUTH KANDUYI/8830

and

1595

which no longer exist. That the land parcel

NO EAST BUKUSU/SOUTH KANDUYI/8830

was sub – divided during the pendency of this suit and no longer exists while land parcel

NO EAST BUKUSU/SOUTH KANDUYI/1596

was sub – divided to give rise to the various parcels which are the subject of this suit. Those parcels are parcels

NO EAST BUKUSU/SOUTH KANDUYI/13955

,

13956

,

13960

and

13961

. That there was a consent order dated 24

th

May 2017 between the parties which the 2

nd

defendant has frustrated by filing this application.

When the parties appeared before me on 23

rd

January 2020, it was agreed by Counsel that the Court determines the said application on the basis of the parties’ affidavits.

I have considered the application and the rival affidavits by the plaintiffs and the 2

nd

defendant.

Section 7 of the Civil Procedure Act

provides as follows: -

“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.”

It is clear from the above therefore, that before a plea of res – judicata can be successfully invoked as a bar to a suit, the following conditions must be met: -

1. The issue in dispute in the former suit between the parties must be directly and substantially in dispute in the suit where the doctrine of res – judicata is pleaded.

2. The former suit must have been between the same parties or those under whom they or any of them claim litigating under the same title.

3. The former suit must have been heard and finally decided.

4. The Court or Tribunal which heard the former suit must have been competent.

The term res – judicata is defined in

BLACK’S LAW DICTIONARY 10

TH

EDITION

as follows: -

“An issue that has been definitively settled by judicial decision. An affirmative defense barring the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction or series of transactions that could have been – but was not – raised in the first suit. These essential elements are (1) an earlier decision on the issue, (2) a final Judgment on the merits, and (3) the involvement of the same parties, or parties in privity with the original parties.”

The rationale behind the doctrine of res – judicata is that litigation must come to an end. Parties who have litigated over a mater in a previous case should not live in fear that a sword of that previous litigation which was heard and determined will continue to hang over them in perpetuity. In

JAMES NJUGUNA CHUI .V. JOHN NJOGU KIMANI C.A CIVIL APPEAL No 322 of 2014 [2017 eKLR]

, the Court of Appeal described the doctrine in the following terms: -

“The rationale behind the rule is simple, there has to be an end to litigation and a person who has had his dispute decided must learn to live with it. It is not open to him to relitigate or reagitate the issue before the same or another forum in the hope of getting an improved or a better result. It is a pragmatic rule designed to stop vexatious litigants from pestering those with whom they have disputes and so it protects the other party from the specter of endlessly repetitive litigation hanging over their heads like the sword of Damocles. It also protects the Court system from abuse such as would bring the administration of justice into disrepute not only by having the same decision pronounced over and over by the same or similarly situated Courts but, worse, by having contradictory decisions emanating from he Court or Courts over the same issue, courtesy of the repeat litigation.”

In urging the Court to find that this case is res – judicata, the 2

nd

defendant averred that this case and

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

relate to the same parties. I have therefore looked at the Judgment in

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

which was annexed to the application. In that case, the 2

nd

defendant had moved to Court against one

JACKSON MWANIKI NDUNGU

to challenge the decision of the

DISTRICT LAND REGISTRAR BUNGOMA

with regard to the boundary between the land parcels

NO EAST BUKUSU/SOUTH KANDUYI/8830 and 1596

. That decision had been adopted by the

BUNGOMA SENIOR PRINCIPAL MAGISTRATE’S COURT

in

MISCELLANEOUS APPLICATION No 157 of 2006

. The subsequent appeal was dismissed.

JACKSON MWANIKI NGUNGU

(now deceased) has since been substituted as plaintiff, by

MARY WANJIRU MWANGI

and

MICHAEL NGUNGU MWANIKI

his wife and son respectively. Therefore, it is obvious that the two plaintiffs herein must be pursuing the interests of the deceased

JACKSON MWANIKI NDUNGU

. However, the 1

st

defendant

PETER ANJOYO VUHYA

was not a party in

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

and it has not been suggested that he has any relationship with the parties therein.

Most importantly, however, it is clear from the plaint filed herein on 8

th

March 2012 that this dispute involves a claim to trespass on land parcels

NO EAST BUKUSU/SOUTH KANDUYI/13955

,

13956

,

13960

and

13961

. A perusal of the documents of title relating to the above parcels of land show that they were created in or about September and October 2009 being sub – divisions of land parcels

NO EAST BUKUSU/SOUTH KANDUYI/1596

. Therefore, the land parcels

NO EAST BUKUSU/SOUTH KANDUYI/13955

,

13956

,

13960

and

13961

which are the subjects of this suit were not in existence by the time

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

was being canvassed. Certainly, those parcels were not the subject of the said appeal although it was determined on 4

th

November 2014 long after the said parcels had been created. It cannot therefore be argued that the claim of trespass and the remedies of injunction, eviction and general damages being sought by the plaintiffs in this case were

“

directly and substantially in issue

”

in

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

which would render this suit res – judicata. Both the issues and the subject matter in this case and

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

are very different. And it cannot by any stretch of imagination be argued that the issues being canvassed in this suit could have been raised before the

LAND REGISTRAR

in July 2006 when he made the decision with regard to the boundary between land parcels

NO EAST BUKUSU/SOUTH KANDUYI/8830

and

1596

which was adopted by the

MAGISTRATE’S COURT IN BUNGOMA MISCELLANEOUS CIVIL APPLICATION No 157 of 2006

that precipitated

BUNGOMA HIGH COURT CIVIL APPEAL No 43 of 2006

.

The up – shot of the above is that this suit is not res – judicata. The first limb of the 2

nd

defendant’s Notice of Motion dated 16

th

January 2018 is equally without merit. It is dismissed. Costs shall also be in the cause as was directed on 22

nd

November 2018.

Boaz N. Olao.

J U D G E

18

th

January 2021.

Ruling dated, signed and delivered at

BUNGOMA

on this 18

th

day of January 2021 by way of electronic mail on keeping with the

COVID – 19

pandemic guidelines.

Boaz N. Olao.

J U D G E

18

th

January 2021.