Cosmas Kanja Mbuteti v Jackson Murage & 3 others

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Appeal 6 of 2000 COSMAS KANJA MBUTETI………….....……………………..APPELLANT VERSUS JACKSON MURAGE…………………………………...1ST RESPONDENT NAHASHON KIMOTHO…………..……………………2ND RESPONDENT PAUL KABINGO………………...………………………3RD RESPONDENT DANIEL GACHOKI……………………………………4TH RESPONDENT JUDGMENT ON APPEAL This appeal arises out of proceedings before Provincial Land Disputes Appeals Committee in Appeal No. 101/1999. The grounds are that the Committee misunderstood the doctrine of Res Judicata that the Tribunal misdirected itself on the legal implication of ruling in Succ.No.5/86. That the Tribunal failed to appreciate that the Senior Resident Magistrate was aware of Succession No. 5/86 when referring the dispute to the Tribunal on 17/3/1998. That the Tribunal exceeded its jurisdiction on terminating the appeal to uphold the decision of the lower court. The decision of the Provincial Land Disputes Appeals Committee in its decision given on 28/2/2000 found that the dispute before it was Res judicata the Resident Magistrate’s court at Kerugoya having confirmed the decree in succession case. The records shows that in the Central Divisional Land Disputes Tribunal Case No. 9 of 1997 in respect of Inoi/Ndimi/86 the claimant was Cosmas Kanja Mbuteti and Objector was Jackson Murage, Paul Kabingo, Nahashon Kimotho, Daniel Gachoki Muchiri. That Tribunal awarded Cosmas Kanja Mbuteti ¼ acre which was to be apportioned from the whole parcel Inoi/Ndimi/86. In the Central Provincial Appeals Committee it was alleged that the issue of ownership of plot No. Inoi/Ndimi/86 had been decided in Senior Resident Magistrate Succ.No. 5 of 1986 when the land was distributed among the persons named in Certificate of confirmation of grant and therefore the decision of Central Land Disputes Tribunal was wrong and contrary to Section 13 of Land Disputes Act. (Act 18 of 1990.) The certificate of confirmation issued on 14/12/1993. This was already before the

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