Bryan Erick Focker, Abraham Tuta Mumia & Grace Rael Mangala v Joseph Herman M. Ssemuju [2017] KEHC 7501 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

CIVIL APPEALNO.22 OF2015

BRYAN  ERICK FOCKER …………………..………1ST APPELLANT

ABRAHAM TUTA MUMIA……………………...….2ND APPELLANT

GRACE  RAEL MANGALA………………………...3RD APPELLANT

VERSUS

PROF.  DR. JOSEPH  HERMAN M. SSEMUJU….....RESPONDENT.

R U L I N G.

1. The application before me is a Notice of Motion dated 8/8/2016  filed on the same date.  It  is expressed to be brought under Order 25 Rule  4(1) and 2 of the Civil Procedure  Rules, Order 51 Rules 1 and 2, Sections 7, 6, 3A, 3,  63, 1A, and 1B of Civil Procedure Act (cap 21) and  Article  159 (1)  (2) and 6 of the  Constitution  of Kenya. The matter herein is an appeal and the applicant – PROF. DR.  JOSEPH HERMAN M. SSEMUJU – is the respondent  in the appeal while the respondent  in the application – GRACE RAEL MANG’ALA  -  is  also the respondent in the appeal.

2. This application was filed after the appellant’s side had fully argued its appeal.  When the applicant’s turn to argue the appeal came, he filed this application instead.

3. Basically, the application raises the issue of RES JUDICATA. This is a doctrine that protects litigants from harassment through re-litigation of the same claim or issues.  It helps to preserve the image and prestige of the courts by avoiding inconsistent judgments and/or  rulings. This is necessary because  such inconsistencies would undermine the general public’s esteem for the legal order.  It  is too  a time-saving device for the courts because it  saves time that could be spent on repetition  of litigation.

4. There are eight (8) prayers  in the application  but prayer 1, which seeks to prioritise  the application and hear it at the earliest opportunity, can be  considered spent. The prayers for consideration are therefore  2, 3, 4, 5, 6, 7, and 8. I set them out  herein IPISSISMA VERBA:

Prayer 2: That the withdraw order  dated 7/5/2014 of CMC  Civil suit  NO. 519 of 2010 by  GRACE  RAEL MANGALLA in favour  of PROF. DR. JOSEPH HERMAN SSEMUJU makes paragraphs 7, 8, 9, 10 in the  re-amended memorandum  of appeal in High  court Civil Appeal NO.22 of 2015, and part submissions thereof, RES JUDICATA.

Prayer 3: That by the ruling in High court Civil Suit NO.124 /2014 dated 17/7/2014 warrants paragraphs 7, 8, 9, 10 of the re-amended   memorandum of appeal and part submissions thereof, RES JUDICATA.

Prayer 4: That   by the ruling in High Civil suit NO. 124/2014 dated 18/6/2015 warrants paragraphs 7, 8, 9 and 10 of the appeal and part submissions thereof, RES JUDICATA.

Prayer 5: That by the withdrawal order dated 7/5/2014 of CMC Civil  suit  NO. 519/2010 by  GRACE  RAEL MANGALA  in favour of the applicant makes   paragraph 7, 8, 9, 10  of the re-amended      memorandum of appeal, and  part submissions thereof, RES JUDICATA.

Prayer 6: That in the withdrawal order dated 7/5/2014 of CMC NO. 155/2013 by GRACE  MANG’ALA   and Abraham Mumia  in favour of the applicant Prof  J.M.H SSEMUJU grounds of the appeal are RES JUDICATA  and GRACE RAEL MANG’ALA  does not have LOCUS STANDI.

Prayer 7: That GRACE RAEL MANG’ALA does not have a locus standi.

Prayer 8: That costs  of this application be provided for.

5. The application is premised on the grounds, inter alia, that  the re-amended  grounds of appeal raise  RES-JUDICATA issues; that the issue of ownership of the disputed  land was settled by the respondents  when they withdrew CMC. Civil suit NO. 519/2010, CMC Civil suit NO. 155/2013, and Civil suit NO. 167/2014;  that the respondent – GRACE RAEL MANG’ALA – even  confessed to have sold the land to other people, one of whom took the applicant to court in civil suits no’s 201/2014 and 124/2014 and lost.  Grace Rael  Mang’ala  is said to be  without locus as  she no longer owns the land.

6. The supporting affidavit accompanying the application reiterated and amplified the grounds advanced.

7. The respondent filed no response to the application. Both sides  agreed on 22/9/2016 to  have the application canvassed by way of written submissions. Thereafter, the applicant’s submissions were filed on 23/11/2016 and the respondents submissions followed on 19/12/2016.

8. The synopsis of the applicants  sub missions refer  to instances of attempted fraud, with the respondent, though having sold the land to the applicant  attempting to sell it yet again to another person  who in turn tried to sell it to other people. This fraudulent arrangement seems to have found official endorsement from the land office but a quick response from the applicant led to a reversal and restoration of ownership to him. That fraudulent process also spawned a number of civil suits which the applicant avers to have ended in his favour. According to the applicant, the ending of those suits in his favour concluded the issue of ownership and it is therefore RES JUDICATA  to raise the issue in this appeal.

9. The submissions raised three issues viz:

Whether the grounds (7, 8, 9, and 10) are resjudicata.

Whether the court can try a res-judicata case?

Whether the appeal herein has a likelihood of success.

10. The applicant expounded on the issue of RES JUDICATA using statutory law underpinnings and judicial pronouncements in decided cases. In this respect, he cited  section 7 of  the Civil Procedure Act (cap  21) and judicial  pronouncements in cases  of BENSON NGUGI VS FRANCIS KABUI KINYANJUI & others [1989] KLR 146, LOTTA VS TANAKI [2003]  2 EAP  556 (CAT0, BENJOH  AMALGAMATED  & ANOTHER  VS KENYA COMMERCIAL BAND LIMITED CA  NO. 239/04 and ABDUL KARIM HASSANAILI VS  SOUTHERN CREDIT BANKING CO-OPERATION LIMTED; MSA HCC NO. 270/2005.

11. The  thrust  of the applicant’s exposition in both case law  and statute is that litigation  must come to an end;  that no man should be vexed  twice over the same case; that  decisions of the court must be accepted; and  that it would be an abuse of the court process to allow  prosecution of a matter that is RES-JUDICATA.

12. The applicant then pointed out that the respondent and others in related cases have over vexed him by instituting various suits . He went on to submit that  RES JUDICATA is a jurisdictional issue that should take priority before the matter is heard  on merit (see  NATTALI SULE VS EVANS GUNDOHICH  HCC. NO. 52  OF 1988)  and that  RES JUDICATA is not confined only to issues already  decided but to issues  also which ought to have been raised in a case for decision (see  GREENHALGH VS MILLARD (1974) 2 ALL ER 255 P 25).

13. Ultimately, the  applicants submissions were that the grounds of appeal (No’s 7, 8, 9 and 10) are res-judicata and the court should declare them so;  that the court has no power to try res – judicata cases; and  that the grounds of appeal ‘’ are quite  hopeless as indeed they have no likelihood of success’’

14. The respondent’s  submissions is that the applicant  has gone  sub judice by raising the issue of RES JUDICATA  in the manner he has done instead of raising it in his arguments regarding the whole appeal.

15. I have considered the application and the rival submissions.  The applicant’s beef is with grounds 7, 8, 9 and 10 of the re-amended  grounds of appeal.  It is therefore necessary to know what these grounds are and l will state them in summary.  Simply stated, the grounds are that it was a mistake to award special damages to respondent given  that he had not proved ownership of the land (ground 7); that the defendants  counter-claim should not have been  allowed as the transaction between the parties had no consent of Land Control Board (ground 8); that  the alleged seller, GRACE RAEL  MANG’ALA, had  not sold any land to the defendants and the defendant’s  claim  was therefore fraudulent (ground 9);and  that there was material contradiction  as to how much land the defendant bought and that contradiction rendered the counter claim untenable (ground 10).

16. I have  stated elsewhere in this ruling what  RES JUDICATA  aims to achieve.  It  is necessary to appreciate  how it operates.  And its operations are premised on two simple postulates namely; (a)  That issues or cases  decided  on merit should not be re-litigated  and (b)  that issues that ought to have been raised  for consideration in a given case but were not  raised  cannot  be raised  in another or later case for consideration.

17. RES JUDICATA  cannot  be raised  where the issues or case was not decided on merit.  And  a decision on merit is one where the court  has exercised     its judicial mind after due consideration of what  is presented and made an informed decision.  It cannot also be raised where the issue or case is one on appeal or where the court is invited to review or revise a decision.  Further it  is also incompetent to raise it where the matter was merely withdrawn, abandoned or struck out.  All this is because the merits of the case have not been considered by the court.

18. It is with all this in mind that l am constrained to observe that the application herein has several shortcomings and/or problems.  Consider this:

a) What the court is handling is an appeal.  And  the appeal as brought is from the decision of the lower court.  The applicant herein does not seem to appreciate how RES JUDICATA  operates.  RES JUDICATA does not lie where what is being challenged is a decision of the lower court.  It is the indisputable  right of the aggrieved parties to challenge  such decision on appeal. The applicant has mentioned some High court matter.  But  this appeal is not about them.

b) The lower court cases forming the basis of raising RES JUDICATA  were merely withdrawn, not  decided on merits.  RES JUDICATA applies  where the issues complained of were decided by the court  on merits.

c) As a general  rule, one cannot raise the issue of  RES JUDICATA  if one has not  raised it first in the pleadings.  When the re-amended grounds of appeal were filed herein, the  applicant responded by filing grounds of opposition in writing. The applicant should  have intimated his intention to raise  the issue in his filed grounds. He didn’t  do so. He instead chose to surprise the respondent (appellant) by  bringing the  issue vide a Notice of Motion. That  was improper.

d) The manner  of raising the issue is suspect. The appellant had argued its side of appeal.  It was the respondent’s turn to present his arguments.  Instead of doing so, he filed this application. This is something done with hindsight. The applicant had gained the opportunity of listening fully to the other side.  He had that advantage and by filing the application, he seems intent on stealing a march on the respondent (Appellant).

e) The court expressed its desire vide a ruling dated 1/12/2015 to have the appeal heard expeditiously.  It did so after observing that this is a matter where ‘’things seem to be in a state of flux’’.  The hearing  of the appeal herein had entered the final stage.  But the  applicant herein vindicated the court in its observation by filing this application. The  application gave the appeal a strange twist.  By picking grounds 7. 8, 9 and 10 as the basis of raising  the issue of RES JUDICATA, the respondent  is inviting the court to decide the appeal partially, not fully.  The other grounds would  have to come later. The appeal then would not be concluded. This is  undesirable.

19. It is also important to  note that while the main thrust  of the application rests on the issue of RES JUDICATA,  the  applicant also raises the issues of LOCUS STANDI  and  SUB JUDICE. It is not clear why these can’t  be raised in response to the main appeal.  It is not also clear why the court is being invited to consider whether the appeal has chances of success on the basis of grounds 7,8, 9, and 10, when  the response to the other grounds of appeal has not  yet been made.

20. The upshot is that the application is one that must fail.  I hereby dismiss the application with costs.

A.K. KANIARU,

JUDGE.

DATED AND DELIVERED ON 7TH DAY OF MARCH, 2017.

IN THE PRESENCE OF;