Chemweno Kimutwol v Albert Mulati Wepukhulu,Peter Bikala Barasa,County Land Registrar, Trans-Nzoia County & Attorney General [2020] KEELC 1508 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

ELC NO. 57 OF 2019

CHEMWENO KIMUTWOL..............................................PLAINTIFF

VERSUS

ALBERT MULATI WEPUKHULU........................1ST DEFENDANT

PETER BIKALA BARASA.....................................2ND DEFENDANT

COUNTY LAND REGISTRAR,

TRANS-NZOIA COUNTY.....................................3RD RESPONDENT

THE ATTORNEY GENERAL..................................4TH DEFENDANT

RULING

The Application

1. The 2nd defendant filed a notice of motion dated 4/2/2020 and filed on 5/2/2020 seeking the following orders against the plaintiff:

1. That this suit be struck out with costs for being res judicata.

2. That costs of this application be borne by the plaintiff/respondent

2. The application is brought under Section 7 of the Civil Procedure Act.

3. The application is premised on the following grounds: that the suit and/or issue is directly and substantially in issue in Kitale District Magistrate’s Court Civil Case No. 96 of 1972andKitale Senior Resident Magistrate’s Court Land Case No. 7 of 1989 which were determined; that the former suits  were between the same parties, who were litigating under the same title and over the same subject matter herein and they were heard and determined, and that litigation has to come to an end. The application is supported by an affidavit of the 2nd defendant sworn on 4/2/2020. It reiterates the above grounds.

The Response

4. The plaintiff filed a replying affidavit dated 2/3/2020.  In that affidavit, he states that it is not correct to state that this matter is res judicata vis is a vis the two cases cited above. The main reason for his belief is that both suits referred to a plot apparently measuring 23 acres while the land reference Trans Nzoia Suwerwa/240is only 17 acres in size.

Submissions

5. None of the parties filed any submissions on the application by the time of preparation of this Ruling.

Determination

6. The issue that arises in the instant application is whether the instant suit is res judicata. It is not denied by the plaintiff that the two other suits mentioned by the 1st defendant existed.

7. The applicant’s version of events is that his late father purchased Plot No 240 Suwerwa from the 1st defendant in 1969. He further states that in 1972 the plaintiff herein sued his father over the land in Kitale DMC Civil Case No 96 of 1972 claiming that the 1st defendant had sold him the land and that that suit was dismissed with costs.

8. I have examined the copy of the judgment in Kitale DMC Civil Case No 96 of 1972. The current plaintiff was the plaintiff in that case and Jackson Barasa, the 2nd defendant’s father was the defendant. The suit land was Plot No 240 Suwerwa of which the plaintiff claimed to be the rightful owner, having allegedly purchased it for Kshs. 5000/= from one Wepukhulu in 1971.  The court appears to have been inconclusive in its findings. In part it stated as follows in the judgment:

“I am satisfied that the plaintiff bought plot No. 240 at Suwerwa Settlement Scheme while aware that the defendant had some interest in it. Until the position is made clear, by the Ministry Of Lands and Settlement I make no order concerning the eviction sought by the plaintiff. For this reason I dismiss this claim with costs.”

9. This court does not find that decision to be conclusive of the rights of the parties so as to warrant the application of the doctrine of resjudicata in the instant suit.

10. No decision in any appeal against the decision in Kitale DMC No. 96 of 1972 is exhibited in the application. However a partly legible copy of a decree in Civil Appeal No 106 Of 1993 is exhibited showing that an appeal against some decision (which is not identified as Kitale DMC Civil Case No 96 of 1972)was dismissed with the caveat that the then appellant (who is the plaintiff herein) was at liberty to apply to the lower court for some orders. The curious factor in that appeal is that it involved two defendants who included the 2nd defendant.

11. The next decision annexed to the application is a ruling dated 14/5/1998 in a Land Case No. 7 of 1999. The writings are so faint in some parts that this court is unable have a comprehensive appreciation of that decision. However it mentions in part a court order of 30th January 1990. A copy of a decree dated 30th January 1990 has been exhibited. It adopts the award of a panel of elders as the judgment of the court and awards the plaintiff 8 acres out of Plot No 240 Suwerwa Settlement scheme to hold in trust for the family of Jackson Barasa while the remaining 15 acres are awarded to the plaintiff in the instant suit, who by that decree is also to retain the side on which he had erected his house. By that decree the defendant (who is the 1st defendant herein was to effect the transfer of the land to the entitled persons in the above ratios.

12. The plaintiff in the instant suit avers in his response that the said decree analysed above can not stand for the reason that it has referred to 23 acres and yet the Plot No 240 is only 17 acres. He has exhibited a copy of the register in support of this fact. The plaintiff also exhibits copy of the proceedings in the same case showing that the 1st defendant’s wife had conceded that the 2nd defendant’s father was only granted a temporary occupation of a part of the land after he as refunded his money and that the land was sold to the plaintiff.

13. In this matter the plaintiff avers that he obtained a title deed to the entire land in his name in 1995. Subsequently that title was subdivided in 2007 after the award of the elders and the decree of the court was issued and the 2nd defendant got slightly more than 8 acres, implying that the plaintiff herein was left with 9 acres in lieu of the 17envisaged by the panel of elders.

14. A perusal of the plaint in the instant suit reveals that the plaintiff’s claim is for an order that the land disputes tribunal did not have any jurisdiction to entertain the dispute regarding title to land among other prayers and that he was not made a party to the dispute before the tribunal. In my view, this is a claim entirely different from the claims adjudicated by the courts below. From the material placed by both parties on the record, the plea of res judicata does not apply to this case.

15. The 1st defendant’s motion dated 4/2/2020 has no merit and the same is hereby dismissed with costs to only the plaintiff.

Dated, signedanddeliveredatKitale via electronic mail on this 21stday of July, 2020.

MWANGI NJOROGE

JUDGE, ELC, KITALE.