Ethics and Anti Corruption Commission v Leading Developers Limited & 6 others (Environment and Land Case Civil Suit E359 of 2021) [2023] KEELC 22336 (KLR) (14 December 2023) (Ruling) Neutral citation: [2023] KEELC 22336 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT AND LAND CASE CIVIL SUIT E359 OF 2021 LN MBUGUA, J DECEMBER 14, 2023 BETWEEN ETHICS AND ANTI CORRUPTION COMMISSION .......................... PLAINTIFF AND LEADING DEVELOPERS LIMITED ............................................. 1ST DEFENDANT AL BUSHIRA PROPERTIES LIMITED ........................................ 2ND DEFENDANT AL-IMRAN INVESTMENTS LIMITED ....................................... 3RD DEFENDANT COMPUTERLEARN ENTERPRISES LIMITED ......................... 4TH DEFENDANT R.S WAMBUGU T/A PANJINYA ENTERPRISES ....................... 5TH DEFENDANT NELSON WASWA OTIDO ............................................................. 6TH DEFENDANT HEZRON OLUOCH ........................................................................ 7TH DEFENDANT RULING 1. There is a pending application and a preliminary objection for determination in this matter. The Preliminary Objection dated 24.11.2021 2. The above Preliminary Objection was brought forth by the 1st 3. Defendant who contends that this suit is res judicata to the case Misc Case No. 709 of 2012 which matter was settled. 4. The preliminary Objection was canvassed by way of written submissions. The 1st Defendant led submissions dated 16.10.2023, arguing that the issue in Misc. Case No. 709 of 2012 was based on transfer of LR No. 36 /VII/254 which is also the issue for determination before this court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22336/eng@2023-12-14 1
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5. It is further submitted that the former suit was led by the 3rd Defendant herein against the Registrar of Government Lands & 2 others who were government bodies while the instant suit was also led by a government body. Thus the ling of multiple suits amounts to abuse of the court process. 6. The case of Heritage Insurance Company Limited v Patrick Kasina Kisilu [2015] eKLR, Omondi v National Bank of Kenya Ltd and others [2001] 1EA 175 as well as the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & 3 others [2013] eKLR are relied upon. 7. In opposition thereof, the plainti led submissions dated 31.10.2023, where it argues that the elements which give rise to res judicata as identied in the case of Uhuru Highway Development ltd v Central Bank of Kenya [1999] eKLR as well as the case of Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] eKLR have not been met. 8. It is argued that the issues raised in the instant suit are materially dierent from the issues in Misc. Case No. 709 of 2012 where the 1st Defendant herein sought a declaratory order that he is the legal and benecial owner of LR No. 36/254/VII and the court did not make a determination on the issue, it only granted an order of removal of the caveat registered on the property, thus it did not determine the issue of ownership which is the issue for determination herein. 9. It is argued that the parties in the suit are dierent save for the 3rd Defendant and neither the 1st Defendant nor the Plaintis were parties in the former suit. 10. The 2nd - 7th Defendants neither led responses nor submissions. 11. I have considered all the arguments raised herein. The issue for determination is whether this suit is resjudicata to the suit Miscellaneous Civil Suit No. 709 of 2012 (hereinafter, the earlier suit). 12. The elements to be surpassed for res judicata to succeed have been stated in the case of Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR. 13. A perusal of the pleadings led in Miscellaneous Civil Suit No. 709 of 2012 indicate that the case was between Al-Imran Investments Ltd as the applicant against the Registrar of Government Lands, Commissioner of Lands & the Attorney General. The said applicant (now 3rd defendant) sought orders to be declared owner of the subject property herein, LR 36/VII/254. Vide orders dated 12.3.3013, the suit was marked as settled with the Defendants being ordered to lift a caveat which they had placed on the suit property. 14. At the center of this suit is the issue of ownership of the same parcel. That issue was not conclusively brought to nality in the consent order. I therefore nd that the element of res-judicata has not been established. The preliminary objection is hereby dismissed. Each party is to bear their own costs of the preliminary objection. Application dated 7.7.2023 15. In the above application, the rm of M/s Guandaru Thuita & Co. Advocates are seeking leave to cease acting for the 5th defendant and that costs be provided for. 16. The application is opposed by the Plainti vide grounds of opposition dated 16.10.2023. It contends that it cannot be condemned to pay costs of the application as it is acting in public interest pursuant to its mandate under Section 11 (1) (j) of the Ethics and Anti-Corruption Commission Act, 2011. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22336/eng@2023-12-14 2
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17. There is no logical explanation as to why the applicants are praying for costs. The issue of their withdrawal from acting is between them and their clients. In the circumstances, the application dated 16.10.2023 is allowed with no orders as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:M/s Biwott for the Plainti Kimathi for 1st Defendant M/s Amande for 3rd Defendant Detho for 7th Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22336/eng@2023-12-14 3
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