Charles Gordon Indiwa v Norah Chebet Ndiwa, Tecla Chebet Ndiwa & Chairman Mt Elgon LDT [2013] KEHC 2499 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL  CASE NO. 46 OF 2011

CHARLES GORDON INDIWA ….....…...........…….... PLAINTIFF

VERSUS

NORAH CHEBET NDIWA …………....….…..…. 1ST DEFENDANT

TECLA CHEPANGOR NDIWA...................... 2ND DEFENDANT

THE CHAIRMAN MT. ELGON LDT …............ 3RD DEFENDANT

RULING

The 1st and 2nd  defendants raised a preliminary point of law that the plaintiff's suit is res judicata.

As per Mr. Juma for  the 1st and 2nd defendants, the dispute before court is in respect of  L.R. NO. Elgon/Chemonge/297.  This was arbitrated by Mt. Elgon Land Disputes Tribunal and its finding adopted as  order of court in  Kimilili PMCC NO. 17 of 2009.

According  to counsel, the plaintiff admits  participating in the proceedings before the Tribunal at paragraph 6 of his plaint.  The present suit regards  same subject matter and same parties. That this suit  is asking the court to sit on appeal.  He urged the suit to be struck out for  being  res judicata.

The plaintiff opposed  the preliminary point.  His  arguments is that he was not informed when the award was read. He urged the court to dismiss the  preliminary objection as  the Tribunal lacked capacity to arbitrate the dispute.  These are the prayers contained in the plaint;

“(a).    Declaratory order that the purported proceedings and deliberations,  verdict and award of plaintiff's     portion of  land  vide  parcel    No.  L.R. NO. Elgon/Chemonge/297  to the 1st defendant are null and void.”

“(b).    Permanent injunction to restrain the defendants, their agents and/or servants from interfering with  the plaintiff's  land.”

Essentially the plaintiff is  questioning the verdict of  the Tribunal. Although  the subject matter is the same, the issues raised  is  not  what is envisaged under Section 7 of the Civil Procedure Act. The  Tribunal cannot question it's own decision nor issue injunctive orders, temporary or otherwise while adjudicating a subject matter. The tribunal cannot grant the prayers currently sought in the plaint.

The defendants can challenge the suit on its merit but  res judicata is not open avenue in this case. It's the court's finding that the preliminary objection is therefore unmerited and is disallowed with costs  to the plaintiff.

RULING DATED, SIGNED, READ and DELIVERED in open court this 26th      day of June 2013

A. OMOLLO

JUDGE.