Mbogo v Kanyaki & another

and says that he only came to learn about it around 2010 when he tried to dispose of the property. That the 1st defendant also sold 1 acre out of his share to the 2nd Defendant. 4. The defendant opposed the suit by way of a Defence dated 17.06.2021 and led on the same date. It was his case that the Plainti had been registered with the said parcel of land as a trustee for the family and that the said trust was terminated through a decree of the Court in Land Disputes Tribunal case No. 36 of 2007 issued in the Chief Magistrate’s Court in Embu. That title deeds were issued to all interested parties including the plainti who got a share of 4.5 acres out of the total acreage of 7 acres and that the 1st Defendant got 1 acre being land parcel No. Kagaari/kanja 9569. That since the decree the Court in Land Disputes Tribunal Case No. 36/2007 was issued and executed, the plainti has never bothered to set aside the same or appeal against it and hence the orders he is seeking have been overtaken by events. He disputes the plainti’s claim that he was not aware of the decision of the Land Disputes Tribunal as he says the same was read and adopted in the presence of the parties on 25.10.2007. It is his case further that the suit herein is Res-Judicata as there exists a judgement in ELC High Court No. 23 of 2015 and Embu SPMCC 46/1998. 5. The suit was set down for hearing. PW1 was Dominic D. Mbogo, the plainti in the suit. He adopted his witness statement and his bundle of documents as evidence in the suit. He testied that the original parcel of land was Kagaari/Kanja/1038 which belonged to his grandfather. That he was given the land in 1960 and got title to the same in 1980. That his father was not given land by his grandfather. He was told to be given land by the clan which gave him land parcel T 109. That in the year 2007, the 1st Defendant who is his brother led a case before the Land Disputes Tribunal - Kianjo Koma concerning the suit land. That the Tribunal decided that the 1st Defendant get one acre, his late brother Thomas Njagi was to get one acre, his father was to get half acre and the plainti was to get 4.5 acres. That the plainti decided to come to court and led Judicial Review No. 24 of 2007 which was dismissed because the court said it had delayed; he then decided to le this case. That the 1st Defendant sold the one acre meant for him to the 2nd Defendant. 6. On cross examination by the 1st Defendant, he admitted that he was at the tribunal but denied having being involved when the land was subdivided. He also testied that the 1st defendant sold the suit land to the 2nd Defendant to make it dicult for him to claim it. 7. DW1 was Nazario Njagi Kanyaki the 1st defendant. He adopted his witness statement as evidence in his case. He testied that the plainti is his brother whereas the 2nd Defendant is his friend. That he has lived on the suit land for 60 years with his siblings and that is the only place they call home; that the plainti didn’t tell the court that their late father was living on the land also. That their late father had two parcels of land; one piece of land was given to him by the clan and the other he bought it himself. That the plainti was not given the land for himself but on his and other beneciaries behalf as a trustee. That the tribunal ordered that they share the land as set out by the plainti and that his father transferred his one acre to him before he died because he was living with him. That the plainti did not appeal the decision of the tribunal and that he himself sold his one acre because it was his own. 8. DW2 was Alfred Muriithi Njiru, the 2nd Defendant. He adopted his witness statement as evidence in his case. He testied that he knows the plainti but has no relationship with him. That he also knows the 1st Defendant who sold a portion of the land in dispute to him. He sold him one acre at the cost of Kshs. 1.75 million in the year 2019. He testied further that he was taken to the land to view it in 2019 just before he bought it. He was not informed that there was a case pending in court but was told of a case that had been concluded. That he has cultivated on the said land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22589/eng@2023-11-28 2

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Submissions 9. The suit was canvassed by way of written submissions. The plainti led submissions on 24.05.2023. He gave brief facts of the case and identied three issues for determination. The rst was whether the Plainti held the suit land in trust; whether the Tribunal had the jurisdiction to cancel the plainti’s title and order subdivision of the same; whether the plainti is entitled to the prayers sought. It was his submission that the 1st Defendant has not produced any evidence to prove that the land was held in trust by the plainti as required; that the Land Disputes Tribunal did not have jurisdiction to determine disputes revolving around ownership of land as it did because it acted beyond the scope outlined in Section 3(1) of the Land Disputes Tribunal Act; that the Plainti was not involved in the cases before the Tribunal and subsequently the Chief Magistrates Court in Embu therefore he was deprived his title to land before being heard against the rules of natural justice; that the defendant therefore got a title tainted with fraud hence he cannot rely on the doctrine of bona de purchaser. 10. He cited the cases of Njenga Chogera v Maria Wanjira Kimani & 2 others (2005) eKLR, Juletabi African Adventure Limited & Anor v Christopher Michael Lockley (2017) eKLR, Joseph Malakwen Lelei & Anor v Rift Valley Land Disputes Appeals Committee & 2 others (2014) eKLR, M’marete v Republic & 3 others, Court of Appeal Nyeri, Civil Appeal 259 of 2000 (2004) eKLR, James N.Wa Wambu v Republic & 7 others (1995) eKLR, Barasa W. Wabomba & Another v Omunyin Kituyi & 2 others (2016) eKLR among others. 11. The defendants led their submissions on 25.09.2023. They submitted that the plainti has not led his case with clean hands as he has failed to disclose that apart from the two defendants herein, he has also sold a portion of his land to a third party; that the plainti’s prayer for an order of injunction against land parcel No. Kagaari/Kanja/1038 cannot be granted as the land does not exist. He asks the court to dismiss the case on the grounds of being res judicata and also that the plainti has never appealed against the Chief Magistrates award No. 36 0f 2007 which issued and signed the decree in respect of the suit land. He also said that the plainti has not sued all the parties who are beneciaries of the subdivisions of the suit land. Analysis and Determination 12. I have considered the pleadings, the evidence, and the submissions by the parties. I nd the issues for determination to be; a. Whether the suit herein is Res –judicata b. Whether the plainti is entitled to an order of injunction. The law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that: “ 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 nally decided by such court.” The court set out the ingredients to be satised when determining Res Judicata in the case of Christopher Kenyariri v Salama Beach (2017) eKLR, as cited in Alfred Sagero Omweri v Kennedy Omweri Sagero (2021) eKLR as follows; “ ...the following elements must be satised...in conjunctive terms; https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22589/eng@2023-11-28 3

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a) The suit or issue was directly and substantially in issue in the former suit. b) Former suit between same parties or parties under whom they or any of them claim. c) Those parties are litigating under the same title. d) The issue was heard and nally determined. e) The court was competent to try the subsequent suit in which the suit is raised.” 13. The plainti in this case has instituted suit seeking to challenge the decision of the Land Disputes Tribunal in case no. 36 of 2007. In his pleadings, the plainti refers to the said decision as the Ministers decision which is erroneous as the matter was heard before the Land Disputes Tribunal and not the before the Minister. This court has not been given an opportunity to look at the said impugned decision as the plainti did not make it available to the court. But from the proceedings and the material on record, I have gathered that the 1st Defendant, his two siblings, and their father, had sued the Plainti in SPMCC No. 46 of 1998 seeking to terminate the alleged trust over the suit land herein in order to obtain their share of the same. 14. The said suit was struck out by the Magistrate’s Court on the ground that it lacked the jurisdiction to deal with trust concerning land. That being dissatised, they proceeded to the Embu District Land Disputes tribunal which heard their case and made an award in their favour. That by the said award, the Plainti was to get 4.5 acres, his father was to get ½ an acre whereas his two siblings the 1st Defendant and a Kelvin Murimi were to get one acre each. The award of the Tribunal was adopted by the Chief Magistrates Court at Embu in Award case No. 36 of 2007 and the said decree was executed and the suit land subdivided accordingly. 15. The Plainti then made an application for Judicial Review in this court being ELC Case No. 23 of 2015 seeking to quash the decision of the Tribunal which was said to be issued on 22.08.2007 on the ground that the Tribunal lacked jurisdiction. The court heard the said application and found no merit in the same and thereby dismissed the application on the grounds that; one of the parties in the application was deceased and there had been no substitution. Therefore the court was reluctant to condemn the party unheard. There was also no proper service of the application on all the parties aected and the suit property which was the subject of the parties was no longer in existence. The court was of the position that the award of the Tribunal and consequent decree had been fully executed and perfected as at the time of making the application. 16. The plainti’s allegation that his application for Judicial Review was dismissed due to delay is therefore not true as the same was heard to conclusion. It is also as clear as bright daylight that the plainti herein is seeking the same orders that he had sought in the Judicial review Application. The only dierence now is that he has brought this suit by way of a plaint whereas in the Judicial Review Application he had moved the court by way of Notice of Motion. The orders sought are the same as he is seeking to challenge the decision of the Tribunal on the basis that it lacked jurisdiction to make the determination that it made which orders were declined by a court of equal and competent jurisdiction. 17. The 1st Defendant was a party in the Judicial Review application but now the plainti has brought on board the 2nd defendant which makes no dierence as the subject matter of the case did not change. For this reason, the plainti’s case cannot be sustained as the same falls squarely on the doctrine of ResJudicata. This court cannot re-open the issue of whether the Tribunals Award was lawful or not since https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22589/eng@2023-11-28 4

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as has been mentioned before, a court of competent jurisdiction already made a determination on the same. As the court rightly held, the said decision had already been fully executed and perfected and therefore the plainti’s case has been overtaken by events. Again, the plainti during the hearing of this case admitted that he participated in the proceedings in the Tribunal. If aggrieved by the decision of the Tribunal or the circumstances under which it was made, he ought to have appealed against that decision at the time it was issued and before it was adopted as a decree. He made an attempt to have the decision quashed but it was already too late. There is no way to rescue him now. 18. The plainti has also made a prayer for permanent injunction to issue against the defendants from interfering with the quiet possession of the land previously registered as Kagaari/kanja/1038 which he says he has been in occupation of for over 30 years. In the case of Wanyoike v Karanja (Environment & Land Case 18 of 2022) [2023] KEELC 16410 (KLR) (23 March 2023) (Judgment) citing the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR the court expressed itself thus; “ A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plainti to be protected. A permanent injunction is dierent from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specied time or until the issuance of further orders from the court. Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties.” The court went on further to say; “ Essentially a party should travel beyond the three fold principles established in Giella v Cassman Brown Co. Ltd 1973 EA. 358, and prove his case on a balance of probability. This is in light of the fact that a permanent injunction is conclusive based on evidence adduced.” Underlining mine. 19. In this case, the plainti is seeking a permanent injunction as against the defendants in favour of the land previously referred to as land parcel Kagaari/Kanja/1038. Before he can be granted the said orders, he has to prove on a balance of probability that he is the owner of the suit land in question in order to be entitled to the orders sought. As has come out clearly, the suit land has already been sub divided and titles issued to other parties. Therefore the land previously known as Kagaari/Kanja/1038 is no longer in existence and therefore this court cannot issue orders over land that does not exist. The plainti has not succeeded in his claim for the suit land herein which means that he has not proved his case on a balance of probability. He is therefore not entitled to the orders sought. This case is clearly Res Judicata also. 20. The upshot of the foregoing I nd that the plainti has not proved his case to the required standard and therefore dismiss it. 21. Each party to bear their own costs. JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 28TH DAY OF NOVEMBER, 2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22589/eng@2023-11-28 5

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In the presence of Plainti, 1st and 2nd defendant, Mugane for Ms Mureithi for plainti, Court Assistant Leadys A.K. KANIARU JUDGE 28/11/2023 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22589/eng@2023-11-28 6

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