Alice Chepkemoi Ngeiywo v Longinus Nganga Ifumbi & another [2014] KEHC 7472 (KLR)

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT CASE NO. 291 OF 2013

ALICE CHEPKEMOI NGEIYWO …................................................PLAINTIFF

VERSUS

LONGINUS NGANGA IFUMBI……………....................……….1st DEFENDANT

FREDRICK P. WEKESA BUKOMA ..................................... 2nd DEFENDANT

RULING

1.         The applicant sued the two defendants in her plaint dated 25th October 2013. She also filed  along with the plaint a notice of motion   under certificate of urgency..  In the motion,  shesought for an   order from this court to compel the  district land registrar and surveyor Bungoma to make a site visit to LAND PARCEL         NosE.BUKUSU/N.SANG'ALO/1921,E.BUKUSU/N.SANG'ALO/1922,and E.BUKUSU/N.SANG'ALO/1923   with a view of ascertaining individual acreages on paper and on the ground and to  have any extra portions pertaining LAND PARCEL E. BUKUSU/N.SANG'ALO/1922, and 1923 sub-divided and    transferred to her.

2.         When the application came for interpartes hearing, Mr. Murunga  advocate raised a point of law that this suit is res judicata and     ought to be dismissed with costs. The summary of Mr. Murunga's objection is that the applicant had filed previously similar suits regarding the same subject matter which had been heard and determined or  is pending. He annexed proceedings of Kanduyi Land Disputes Tribunal  case no. 26 of 1998 and copies of notice of  motion in Bungoma CMCC land case no. 25 of 2001 in support of his submissions.

3.         He also annexed a copy of filed memorandum of appeal in Bungoma HC Civ. Appeal no. 27 of 2008.  He submitted that in all the suits, the matter in dispute was similar to the present claim. That in executing the award of the tribunal, the District Land Surveyor did visit the three disputed parcels of land nos E.BUKUSU/N.SANG'ALO/1922, 1923 and 1921 and made a report. He annexed a copy of that report and submitted that the applicant has never filed an appeal against that report which was made available to her. Mr Murunga advocate has informed the  court that the applicant is aware the 2nd defendant is deceased yet she has filed a claim against him. Inresponse, the            applicant admitted filing the dispute before the Kanduyi  Land Disputes Tribunal  in 1998 and the application in 2008 but denied she     filed the pending appeal.  She urged the court to grant  her order for re-survey of the land.

4. I have perused the pleadings filed. In the plaint, the applicant has sought for an order compelling the District Land Registrar and Surveyor to visit E. BUKUSU/N. SANG'ALO/1921, 1922 and 1923 to ascertain individual acreages on   the ground and to have any extra portions on L.R. 1922 and 1923   sub-divided and transferred to her (see paragraph 9 of the plaint). The tribunal in their award dated  20. 2.2001 found thus

“The panel examined the facts and resolved that the buyers bought from James Kibusia Ndiga properly and recommended  that the claimant     brings in special survey to resurvey the land    so that any portion over    the land bought should go back to the    claimant.  Thus Longino – 3 acres, Bukoma 3 ½ acres. Each   party to bear their costs.

5.         In the notice of motion filed in 2008, prayer one therein sought    similar orders as those granted by the Kanduyi Land Disputes Tribunal.  This application was dismissed on 3rd June 2008 because the trial court held the view the matter in dispute had already been determined.  From the copy of the memo of appeal annexed, it is an appeal against this ruling of the Chief Magistrate's court. In the     memo on record, the applicant is named as the appellant and the defendants as respondents.  This appeal is still pending.  It is quite obvious that either the applicant does not understand the legal process or has chosen to adopt the title of a vexations litigant.  This   suit is no doubt res judicata as the orders sought herein are similar to the award of Kanduyi Land Disputes Tribunal on 20. 2.2001 and which orders have not been set aside or varied.  The Kanduyi LDT reached its decision having heard all the parties to the dispuite. Consequently, I find the application dated    9th April 2014 together with the plaint filed is res judicata. The entire suit be and is hereby ordered struck out as being res judicata and an abuse of the court   process. The 1st defendant is awarded the cost of the application and the  suit.

DATED, SIGNED and delivered in Bungoma on 10th  of July 2014

A. OMOLLO

JUDGE