Plaintiffs v 2nd & 3rd Defendants (Plot Number 13 Kahawa West Phase II)

NAIROBI CITY COUNTY ............................................................. 3RD DEFENDANT RULING 1. Before me is an application dated 8th April, 2024 by the 2nd Defendant seeking for orders that; a. This Honourable Court be pleased to strike –out the Plaint herein and to dismiss the Plaintifis’ suit. b. The 2nd Defendant be awarded costs of this suit in any event. 2. The application is based on the grounds on the face of it and the Supporting Afidavit of Crispus Raini Nyagah, the 2nd Defendant herein, sworn on the 8th April, 2024. The 2nd Defendant avers that he is the legitimate allottee of Plot Number 13 Kahawa West Phase II measuring 0.16 Hectares. Evident by the Letter of Allotment, Beacon Certificate and Receipt of Payment of Stand Premium. He asserts that the Plaintifi on the other hand has not produced any document to proof ownership of their alleged Plots; no title or Letter of Allotment. 3. The Applicant avers that he was the first owner of the suit property having been allocated in 1992 way before the alleged allocation to the Plaintifis. He states that he has never sold or authorized any person to deal with his property in any manner. He argues that the Plaintifis are therefore trespassers on his property. 4. He further states that the records with the 3rd Defendant indicates that he is the rightful owner of Plot Number 13 as evidenced by the Ground rates receipts and invoices. 5. The applicant asserts that the issues raised herein are res judicata having been dealt with and determined in case number ELC 808 of 2012 vide the Judgement delivered on the 8th February, 2019. He argues that the Plaintifis’ suit as drawn and presented before this court is scandalous, frivolous and vexatious and is only meant to ‘buy time’ for the Plaintifis to continue illegally occupying his property without paying for it. 6. He argues that in any event, the Plaintifis’ suit is defective as the Verifying Afidavit purportedly in support of the suit is contrary to the provisions of law. That the deponent has not annexed authorization purportedly issued by her co-Plaintifis. 7. Despite service of the Application, the Plaintifis did not file any response to application. The application is therefore not opposed. Issues for determination 8. Having considered the application herein and the Plaint filed herein, the only issue for determination is whether the instant suit res judicata as alleged by the Applicant. Analysis and Determination 9. The law pertaining to the doctrine of res judicata is captured under the provisions of Section 7 of the Civil Procedure Act which states: “ No court shall try any suit 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 same title, in a court https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4403/eng@2024-05-23 2

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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.” 10. Section 28 of the Environment and Land Court Act also bars the court from adjudicating over disputes between the same parties and relating to the same issues previously and finally determined by any court of competent jurisdiction. 11. The doctrine of res judicata as stated has been explained in a plethora of decided cases. In the case of the Independent Electoral and Boundaries Commission –vs- Maina Kiai & 5 Others (2017) eKLR, the Court of Appeal held that: “ Thus, for the bar of res judicata to be efiectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in distinctive but conjunctive terms: 12. a) The suit or issue was directly and subsequently in issue in the former suit. b) The former suit was between the same parties or parties under whom they or any of them claim. c) Those parties were litigating under the same title. d) The issue was heard and finally determined in the former suit. e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” The court explained the role of the doctrine as follows: “ The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and afiords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundation of res judicata thus rest in the public interest for swift, sure and certain justice.” 13. From the pleadings and the annexed Judgement in Elc Case No. 808 of 2012, it is not in dispute that the subject matter in the previous litigation and the current suit is the same. Both the former suit and the present suit are between the same parties. 14. In the case of E.T.V –v- Attorney General & Another (2012) eKLR Majanja J stated that; “ The courts must be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the Plaintifi in the second suit is trying to bring before the court in another way and in a form a new cause of action which has been resolved by a court of competent jurisdiction.” 15. Applying the stated law to the facts before me, it is clear that the Plaintifis seek to re-open issues that were raised and dealt with in the earlier proceedings. In my view, by filing this suit, the Plaintifi are trying to re-litigate a concluded matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4403/eng@2024-05-23 3

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Conclusion 16. In the result I find and hold that the 2nd Defendant’s application dated 8th April, 2024 is merited. It is allowed as prayed. Consequently, this suit is struck out with costs to the 2nd and 3rd Defendants. 17. The 2nd Defendant shall also have costs of the application. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY, 2024. M.D. MWANGI JUDGE. In the virtual presence of: N/A for the Plaintifis and the 1st Defendant Mr. Njeru for the 2nd Defendant/Applicant Ms. Chepkoyo for the 3rd Defendant Yvette: Court Assistant M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4403/eng@2024-05-23 4

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