Case ID:171213

Kimitei Arap Chirchir v Kimutai Arap Kirui & another [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case E002 of 2020

Parties:

Kimitei Arap Chirchir v Kimutai Arap Kirui & Amos Lumet Kimosop

Date Delivered:

25 Feb 2021

Case Class:

Civil

Court:

High Court at Nakuru

Case Action:

Ruling

Judge(s):

Dalmas Omondi Ohungo

Citation:

Kimitei Arap Chirchir v Kimutai Arap Kirui & another [2020] eKLR

Advocates:

Mr Sambu for the plaintiff

Mr Amos Lumet Kimosop (the 2nd defendant) present

Court Division:

Environment and Land

Parties Profile:

Individual v Individual

County:

Nakuru

Advocates:

Mr Sambu for the plaintiff

Mr Amos Lumet Kimosop (the 2nd defendant) present

History Advocates:

Both Parties Represented

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 NAKURU

ELCC No. E002 OF 2020

KIMITEI ARAP CHIRCHIR...............................................................PLAINTIFF

VERSUS

KIMUTAI ARAP KIRUI ............................................................1

ST

DEFENDANT

AMOS LUMET KIMOSOP.......................................................2

ND

DEFENDANT

RULING

1. This ruling is in respect of plaintiff’s Notice of Motion dated 18

th

September 2020 and defendants’ Notice of Preliminary Objection dated 19

th

October 2020. The application seeks the following orders:

1. [Spent]

2. [Spent]

3. THAT a temporary injunction do issue restraining the Land Registrar Koibatek/Eldama Ravine Land Registry from registering any subdivision, transfer and/or any other interest whatsoever in respect to the parcels of land known as Baringo/Ravine-102/693 and 694 formerly Baringo/Ravine-102/264, Baringo/Ravine102/265 and Baringo/Ravine-102/156 pending the hearing and determination of this application inter partes and thereafter pending the hearing and determination of the main suit.

4. THAT this Honourable Court be pleased to call for Nakuru RMC Land Dispute Case No. 3 of 1983, and Nakuru RMCC No. 764 of 1989 and Nakuru DMC No. 4 of 1972 for its perusal and/or further orders of the court.

5.

THAT cost (sic) of this application be provided for.

2. The Notice of Preliminary Objection targets the application and the entire suit. It is based on the following grounds:

1. THAT both the Notice of Motion and the Plaint is res judicata on the basis of Consent entered into on 2" June, 2014 and adopted as an order of the Court on 1* October, 2014.

2. THAT an Application dated 31" July, 2015, filed by the Plaintiff herein, seeking to set aside the said Consent Order was dismissed on 4" December, 2018.

3.

THAT the Consent Order dated 1% October, 2014 is still in force.

3. I will deal with the preliminary objection first, since it raises a jurisdictional question. Parties filed written submissions. The defendants argued that this suit is

res judicata

since it concerns ownership of the parcel of land known as Baringo/Ravine-102/156 and which issue has been determined through judgment delivered on 24

th

October 1986 in

Eldama Ravine DMCC Land Succession No. 4 of 1972

and through judgment delivered on 8

th

December 1994 in

Nakuru RMCC No. 764 of 1989

and ruling delivered on 4

th

December 2018 in the same case.

4. The plaintiff in his submissions addressed the issue of whether the suit is

res judicata

and also raised issues of whether enforcement of previous judgments between the parties is barred by virtue of

Section 4 (4)

of the

Limitation of Actions Act

. Needless to state, the preliminary objection did not on the aspect of limitation of actions. Regarding the aspect of

res judicata

, the plaintiff argued that this suit is not

res judicata

since the judgment in

Nakuru RMCC No. 764 of 1989

was an irregular judgment. The plaintiff further argued that the subordinate court had no jurisdiction to record consent orders on 1

st

October 2014 in

Nakuru RMCC No. 764 of 1989

which consent later led to the ruling delivered on 4

th

December 2018 in the same case. Additionally, the plaintiff argued that the cause of action in his case is one of adverse possession and fraud and that the matter can only be resolved upon trial.

5. I have considered the preliminary objection and the parties’ respective submissions. The law relating to preliminary objections is settled. For a preliminary objection to be valid, it must raise a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. Lastly, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

6. The objection herein is that this suit is

res judicata

. The essence of

res judicata

has been reduced to statutory expression at

Section 7

of the

Civil Procedure Act

which provides:

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

.

7. Thus, for

res judicata

to apply in a particular matter, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court and the issue is raised once again in the new suit. See

John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others

[2015] eKLR

and

Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others

[2018] eKLR

.

8. So as to better appreciate the issues raised in the preliminary objection, I will revisit the plaintiff’s case as pleaded in the plaint. It is manifest therein that the dispute concerns the parcel of land known as Baringo/Ravine-102/156 which the plaintiff avers was later subdivided into Baringo/Ravine-102/264 and Baringo/Ravine-102/265 and yet again into Baringo/Ravine-102/693 and Baringo/Ravine-102/694. The plaintiff’s case is further that there was a tribunal claim concerning ownership of Baringo/Ravine-102/156 and that the tribunal’s decision was adopted as an order of the court on 5

th

January 1984 in

Nakuru RMC Land Dispute Case No. 3 of 1983

between the plaintiff herein and one Kipkurui Cherop. That subsequently, he instituted

Nakuru RMCC No. 764 of 1989

between himself and the 1

st

defendant herein and that judgment was delivered in the said case on 8

th

December 1994 wherein the court found that the issue of ownership of the land was

res judicata

. The plaintiff contends following the judgment, the subdivision of Baringo/Ravine-102/156 into Baringo/Ravine-102/264 and Baringo/Ravine-102/265 was revered back to Baringo/Ravine-102/156 and that the 1

st

defendant then sold the whole of Baringo/Ravine-102/156 to the 2

nd

defendant who then became registered as proprietor on 9

th

October 2014. He further avers that the said judgment was obtained through fraud and that it is therefore irregular.

9. The plaintiff’s case as pleaded in the plaint is further that the 2

nd

defendant herein was enjoined in

Nakuru RMCC No. 764 of 1989

pursuant to a consent adopted in the said case on 1

st

October 2014, after judgment and without jurisdiction. Among other prayers, the plaintiff seeks judgment against the defendants for a declaration that the judgment in

Nakuru RMCC No. 764 of 1989

is irregular for being obtained through fraud and misrepresentation, that the said judgment became statute barred on 8

th

December 2006 and incapable of execution, a declaration that the defendants’ claim to Baringo/Ravine-102/264 based on the judgment is a nullity, a declaration that the consent orders of 1

st

October 2014 pursuant to which the 2

nd

defendant herein was joined to

Nakuru RMCC No. 764 of 1989

is a nullity, a declaration that the cancellation pursuant to the judgment of the title issued to him in respect of Baringo/Ravine-102/264 was irregular, a declaration that the consolidation of Baringo/Ravine-102/264 and Baringo/Ravine-102/265 back to Baringo/Ravine-102/156 pursuant to the judgment was irregular and an order that he has acquired Baringo/Ravine-102/264 through adverse possession.

10. The 2

nd

defendant responded to the plaintiff’s case by filing a counterclaim in which he affirmed the existence of the judgment in

Nakuru RMCC No. 764 of 1989

and the consent referred to by the plaintiff. He added that the plaintiff has used extra-judicial means to deny him peaceful and quiet possession of Baringo/Ravine-102/693 and Baringo/Ravine-102/694 which are the new subdivisions of Baringo/Ravine-102/156. He prayed for judgment against the plaintiff for an order compelling the plaintiff to surrender to court the original title deed in respect of Baringo/Ravine-102/264 which was cancelled, a permanent injunction restraining the plaintiff from filing further suit against the defendants touching on ownership of Baringo/Ravine-102/693 and Baringo/Ravine-102/694, eviction of the plaintiff from Baringo/Ravine-102/693 and Baringo/Ravine-102/694, an order compelling the plaintiff to deliver free, peaceful and vacant possession of Baringo/Ravine-102/693 and Baringo/Ravine-102/694 and an order restraining the plaintiff from trespassing onto his person, entering his home, work place, rental premises or in any other way interfering with him and his estate, agents, servants and/or representatives or any other person acting on his behalf.

11. From the above analysis, it is clear that parties agree that they were all parties to

Nakuru RMCC No. 764 of 1989

and that judgment was delivered in that case which addressed the issue of ownership of Baringo/Ravine-102/156 and its resultant subdivisions. A judgment of a court of law is valid until set aside by the court itself or through appeal. No party has referred to any appeal against the judgment. A judgment cannot be challenged through a new suit. That is precisely what

Section 7

of the

Civil Procedure Act

and the doctrine of

res judicata

bars. Any dissatisfaction with a judgment whether on the basis of irregularity, fraud or want of jurisdiction must be raised before the court that delivered the judgment or by way of appeal. If litigants were to be allowed to commence litigation all over again on the basis of such allegations, litigation would never come to an end. All it would take is for a losing party to craft the most innovative allegations of fraud and once again engage the judicial process.

12. Having been parties to

Nakuru RMCC No. 764 of 1989

, the parties herein must exhaust their claims and reliefs there. They cannot leapfrog to this court otherwise than by way of appeal.

13. The plaintiff has argued that this suit raises adverse possession and fraud which were not determined in

Nakuru RMCC No. 764 of 1989

. The simple answer to that is that fraud is raised in connection with the judgment and as we have seen, that cannot be raised in a new suit. Regarding adverse possession, the parties herein have been litigating against each other from as far back as 1972. The plaintiff has averred at paragraph 27 of the plaint that he has been in possession since the 1960s. I am persuaded that pursuant to explanation number 4 of

Section 7

of the

Civil Procedure Act

, adverse possession is an issue that ought to have been raised in the past proceedings, even if by a parallel originating summons. By introducing the angle of adverse possession in this matter through an amended plaint which was filed after the preliminary objection had been raised, the plaintiff was clearly attempting to give his old claim a cosmetic facelift with a view to circumventing

res judicata

. That cannot work.

14. In view of the foregoing, the preliminary objection is well grounded. I uphold it. I have also analysed the 2

nd

defendant’s counterclaim above. Whereas no objection has been raised on the counterclaim, the 2

nd

defendant himself raised the issue of

res judicata

. He is no doubt aware that

res judicata

cuts both ways. Having obtained joinder in

Nakuru RMCC No. 764 of 1989

, he is for all intents and purposes bound by the outcome of the said case. Even before he joined the case, he was litigating therein under the 1

st

defendant, pursuant to explanation number 6 of

Section 7

of the

Civil Procedure Act

. He cannot seek to advance his claim in

Nakuru RMCC No. 764 of 1989

through this new case or to enforce the judgment in the said case by filing a fresh case. His claims for surrender to court the original title deed in respect of Baringo/Ravine-102/264 and for eviction of the plaintiff from Baringo/Ravine-102/693 and Baringo/Ravine-102/694 are all matters that ought to have been raised in

Nakuru RMCC No. 764 of 1989

. His counterclaim is therefore equally caught in the dragnet of

res judicata

.

15. In the end, both the plaintiff’s claim and the counterclaim are struck out for being

res judicata

. Each party to bear own costs of the suit.

Dated, signed and delivered at Nakuru this 25

th

day of February 2021.

D. O. OHUNGO

JUDGE

In the presence of:

Mr Sambu for the plaintiff

No appearance for the defendants

Mr Amos Lumet Kimosop (the 2

nd

defendant) present

Court Assistants: B. Jelimo & J. Lotkomoi