Case ID:170869

Mary Wairimu Mwangi v Mary Wanja Kamira & 2 others [202] eKLR

Case Metadata

Case Number:

Environment and Land Case 8 of 2017 (Formerly NKR. ELC 55 of 2012)

Parties:

Mary Wairimu Mwangi v Mary Wanja Kamira, Michael Macharia Wachira & Attorney General

Date Delivered:

04 Feb 2021

Case Class:

Civil

Court:

Environment and Land Court at Nyahururu

Case Action:

Ruling

Judge(s):

Yuvinalis Maronga Angima

Citation:

Mary Wairimu Mwangi v Mary Wanja Kamira & 2 others [202] eKLR

Advocates:

Mr. Sigilai for the Plaintiff

Ms. Ndegwa for the 1st Defendant

Court Division:

Environment and Land

County:

Laikipia

Advocates:

Mr. Sigilai for the Plaintiff

Ms. Ndegwa for the 1st Defendant

History Advocates:

One party or some parties represented

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 NYAHURURU

E.L.C. NO. 08 OF 2017

(FORMERLY NKR. ELC 55 OF 2012)

MARY WAIRIMU MWANGI.............................................................................PLAINTIFF

VERSUS

MARY WANJA KAMIRA........................................................................1

ST

DEFENDANT

MICHAEL MACHARIA WACHIRA.....................................................2

ND

DEFENDANT

HON. ATTORNEY GENERAL...............................................................3

RD

DEFENDANT

RULING

A.

INTRODUCTION

1. By its judgment dated 5

th

November, 2019 the trial court dismissed the Plaintiff’s suit against the Defendants with respect to Title No.

Nyandarua/Ndaragwa/Uruku Block 2 (Uruku) 865 (the suit property)

. Among the reliefs sought in the suit were an order of inhibition and a perpetual injunction against the Defendants, their agents, servants, employees, relatives or any other persons claiming through them.

2. Being dissatisfied with the said judgment the Plaintiff filed a notice of appeal against the same indicating his intention to appeal to the Court of Appeal. In the meantime, the Plaintiff filed the instant application expressed to be brought under

Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Sections 68 & 69 of the Land Registration Act, 2012, Section 13 (7) (a) of the Environment and Land Court Act 2011 and all other enabling provisions of the law

seeking,

inter alia,

the following orders:

(a) Spent

(b) Spent

(c) Spent

(d) That pending the hearing and determination of the appeal, an order of inhibition be made and issued to inhibit any and all dealings with and involving

Title No. Nyandarua/Ndaragwa/Uruku Block 2 (Uruku) 865.

(e) That pending the hearing and determination of the appeal, an order of an injunction do issue to restrain the 1

st

Defendant by herself, agents, relatives, servants employees and/or any other individual, individuals or persons claiming authority through or by her from evicting, ejecting, hindering, denying access to, desecrating the toms or burial grounds or in any other manner whatsoever or howsoever interfering with the Plaintiff’s peaceful, quiet use, enjoyment, occupation and possession of a portion of

Title No. Nyandarua/Ndaragwa/Uruku Block 2 (Uruku) 865

and/or leasing or disposing of or parting with possession or selling either the whole or a part of the said parcel of land.

(f) That costs of this application be provided for.

B.

THE PLAINTIFF’S CASE

3. The said application was based on the grounds set out on the face of the application and the contents of the supporting affidavit sworn by the Plaintiff on 15

th

November, 2019. It was contended that the suit property was in danger of being alienated or dealt with the risk that the intended appeal might be rendered nugatory should it be successful. It was further contended that the Plaintiff shall suffer irreparable harm and damage should she be evicted from the suit property before her intended appeal is heard and concluded.

C.

THE 1

ST

DEFENDANT’S PRELIMINARY OBJECTION

4. Before the application could be heard, the 1

st

Defendant filed a notice of preliminary objection dated 16

th

December, 2019 to the application on two main grounds. First, that court was

functus officio

hence it had no jurisdiction to entertain the application. Second, that the application was

res judicata

hence it should not be entertained.

D.

DIRECTIONS ON SUBMISSIONS

5. The record shows that on 20

th

May, 2020 it was directed that the preliminary objection shall be canvassed through written submissions. The record shows that the 1

st

Defendant filed her submissions on 22

nd

July, 2020 whereas the Plaintiff filed hers on 3

rd

August, 2020.

E.

THE ISSUES FOR DETERMINATION

6. The court has considered the 1

st

Defendant’s notice of preliminary objection and the material on record. The court is of the opinion that the main questions for determination are as follows:

(a) Whether the court has become

functus officio

with respect to the application for interim orders.

(b) Whether the application for interim orders is

res judicata.

F.

ANALYSIS AND DETERMINATION

(a)

Whether the court has become

functus officio

:

7. The court has considered the material and submissions on record on the first issue.

Black’s Law Dictionary (10

th

Edition)

defines

functus officio

as follows:

“…..(of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

8. The 1

st

Defendant relied upon the cases of

Chacha Mwita Mosenda v Baya Tsuma Baya & 2 Others [2018]eKLR

and

Re the Estate of Kinuthia Mahuti (Deceased) [2018] eKLR

in support of the submission that the instant application was not tenable on account of the doctrine of

functus officio.

9. The court is of the opinion that even though the cited cases correctly describe the doctrine of

functus officio

and its application, the elements of the doctrine have not been satisfied in the instant matter. The Plaintiff is not seeking to re-open the same issues which were determined by the judgment and decree dated 5

th

November, 2019. The Plaintiff is not even seeking a review, variation or setting aside of the decree.

10. The material on record reveals that the Plaintiff correctly appreciated that her remedy with respect to the decree lies with the Court of Appeal hence the filing of the notice of appeal. The instant application simply seeks interim orders of inhibition and injunction pending the hearing and determination of the intended appeal. The context and purpose of the instant application is thus different from the reliefs sought in the plaint. The interim orders sought in the instant application were thus not considered and determined by the trial court. The court is thus of the opinion that the court is not

functus officio

with respect to the application for interim orders. The court is of the opinion that it could still entertain the application for interim orders pending appeal in spite of the fact that the Plaintiff’s suit for corresponding permanent orders was declined.

(b)

Whether the application is

res judicata

:

11. The court has also considered the material and submissions on record on the second issue. Although the Plaintiff submitted that the requirements of

Section 7 of the Civil Procedure Act (Cap. 21)

had not been satisfied in the instant matter, the 1

st

Defendant did not submit on the doctrine of

res judicata

. There is no doubt that the doctrine of

res judicata

is anchored in

Section 7 of the Civil Procedure Act (Cap. 21)

which precludes a court of law from entertaining in a subsequent suit any matter which was directly and substantially in issue in a previously decided suit between the same parties or parties under whom they claim.

12. In the case of

Kamunye & Others v The Pioneer Assurance Society Ltd [1971] EA 263

the test for

res judicata

was stated thus:

“The test whether or not a suit is barred by

res judicata

seems to me to be – is the Plaintiff in the second suit trying to bring before the court, in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of

res judicata

applies not only to points upon which the court was actually required to adjudicate but to every point which properly belonged to the subject of and which the parties, exercising due diligence, might have brought forward at the time.”

13. The court is of the opinion that the context of the instant application must be properly appreciated in relation to the reliefs sought in the dismissed suit. The Plaintiff is not asking the court to reopen and relitigate her lost claim. She has already moved on and preferred an appeal. Any errors or mistakes in the decree can only be rectified on appeal. What the Plaintiff is seeking is an interim order pending the hearing and determination of the intended appeal. The Plaintiff is not asking the court for the final orders which were denied by the decree dated 5

th

November, 2019. The court is thus far from satisfied that the elements of

res judicata

have been demonstrated in the instant case.

14. The upshot of the foregoing is that the court finds no merit in the 1

st

Defendant’s notice of preliminary objection dated 16

th

December, 2020. Accordingly, the same is hereby overruled with costs to the Plaintiff. As a result, the court shall proceed to fix the Plaintiff’s application for interim orders dated 15

th

November, 2019 for hearing upon delivery of the ruling.

It is so ordered.

RULING DATED and SIGNED at NYAHURURU and DELIVERED via Microsoft Teams Platform this 4

th

of February, 2021.

In the presence of:

Mr. Sigilai for the Plaintiff

Ms. Ndegwa for the 1

st

Defendant

No appearance for the 2

nd

Defendant

No appearance for the Attorney General for the 3

rd

Defendant

Court Assistant – Carol

Y.M. ANGIMA

JUDGE

04.02.2021