Godwin Ouma Makube v Moses Diru Ambasa, County Land Registrar Busia & Attorney General [2015] KEHC 5400 (KLR)

REPUBLIC OF KENYA.

IN THE ENVIRONMENT AND LAND  COURT OF KENYA AT BUSIA.

MISC. APP. NO. 161 OF 2014.

IN THE MATTER OF AN APPLICATION  FOR LEAQVE TO FILE FOR CERTIORI

AND

IN THE MATTER OFLAND DISPUTE NO. 70 OF  2007

AND

AND IN THE MATTER OF L.R SAMIA/BUKHANGALA ‘A’/498

AND

IN THE MATTER  OF THE DECISION OF FUNYULA LAND DISPUTE TRIBUNAL

CASE NO. 08 OF 2007

GODWIN OUMA MAKUBE   …………....................………PLAINTIFF

VERSUS

MOSES DIRU AMBASA .....................................1ST  RESPONDENT.

COUNTY LAND REGISTRAR BUSIA……….….2ND RESPONDENT

ATTORNEY GENERAL………………………….3RD RESPONDENT

R U L I N G.

BACKGROUND

GODWIN OUMA MAKUBE, hereinafter referred to as the Applicant, filed the Chamber summons application dated 17th December, 2014 against the three named Respondents. The application is indicated to be brought under Order 53 Rules 1 and 2 of the Civil Procedure Rules among others. The Applicant seeks for leave to file a substantive application for certiorari and Mandamus Orders relating to the  subdivision of his land into Samia/Bukangala/ ‘A’ 818 and 819. The Applicant also pray for leave to operate as stay in Busia Land Disputes case No. 70 of 2007.

That though the application was indicated to be exparte, the 1st Respondent instructed counsel who filed memorandum of appearance and notice of preliminary objection, both dated 19th January, 2015.

The Applicant also instructed counsel, who filed notice of appointment dated 28th January, 2015.

PRELIMINARY OBJECTION.

4.   The counsel for the 1st Respondent issued the notice to raise a preliminary objection dated 19th January, 2015.  The preliminary objection is based on the ground that   the application is an abuse of the due process of the law. When  application dated17th December, 2014 came up for  hearing on 29th January, 2015,  counsel for the  Applicant and  1st Respondent  agreed  that the preliminary objection be heard  first.           The matter was therefore rescheduled to 16th February, 2015.  On that day, counsel holding brief for the Applicant’s counsel applied for adjournment and the matter was  set down for hearing of the preliminary objection on 9th March, 2015.

5.   That on 9th March, 2015, the Applicant and his counsel did not attend court. The counsel for the 1st Respondent was allowed to prosecute his preliminary objection.The counsel submitted that the application is an abuse of the court process in view  of the court’s decision in Busia H.C. Misc. Application No. 108 of 2014 in which  the Applicant had sought similar prayers and was dismissed. I have carefully   considered the counsel’s brief submission and the applicable provisions of the law            and find as follows;

FINDINGS.

6.   That though the Applicant indicate in the supporting affidavit sworn on 17thDecember, 2014  at paragraph 2 that  there was no land sale agreement between  the 1st  Respondent  and himself, the statement of facts of the same date at paragraph 3 states  otherwise.  ln that paragraph, the Applicant concedes to entering into an agreement to sell 1. 5 hectares of land parcel Samia/Bukangala ‘’A’’/498 to the Respondent.

7.   That the certificate of official search annexed to the supporting affidavit sworn by the applicant on 17th December, 2014 indicates that the register for Samia/Bukangala ‘A’/498 was closed on 16th September, 2013 after it was subdivided into parcels 818  and 819.

8.   That there is nothing in the file to connect the subdivision of parcel   Samia/Bukangala ‘A’/498 with Busia Land Disputes case No. 70 of 2007. The proceedings and award of Busia Land Disputes land case No. 70 of 2007 were not availed in these proceedings and the court is unable to know its subject matter.  The land Disputes Tribunal proceedings and award were also not availed.

9.   That the Applicant has not disclosed the date of the award and or orders of Busia Land Disputes Case number 70 of 2007. The court is therefore unable  to confirm whether indeed the Applicant participated  in those proceedings,the parties  in the matter, the subject matter  and the orders made thereof.

10.            That Order 53 Rule 2 of the Civil Procedure Rules, which is in similar terms with Section 9 (3)  of the Law Reform  Act, requires  application for leave to be filed within   six months of the making of the order or award sought to be called to court and quashed. If the  subdivision of land parcel Samia/Bukangala ‘A’/498 was pursuant to orders issued  in Busia Land Disputes  case number 70 of 2007 in which  the undisclosed Land Disputes  Tribunal award was filed and adopted, then this application was filed outside the six months  window. As held  in the Court of Appeal     decisions in Kimanzi Mbou –vs- David  MutwaNo. 233 of 1996 andWilson Osolo -vs- John  Ojiambo  & Another  eKLR the application herein is time barred and should be dismissed.

11.            That this court has already pronounced itself on this matter in Busia H.C. Misc. Application  No. 108  of 2014  GOWIN OUMA  MAKUBE  -VS- MOSES DIRU AMABASA through  its ruling  delivered in the presence  of both parties on 13thNovember, 2014. The filing of this application in a new file without disclosing the existence of the previous application and orders of 13th November, 2014 made thereof, was an abuse of the courts process.

12.            That Section 7 of the Civil Procedure Act sets out the law on the doctrine resjudicata. The fact that the court has already pronounced itself on this matter makes this application res judicata and the fact that two new Respondents have been added does not alter that fact. The  Court of Appeal  decision in Uhuru Highway    Development Limited –vs-  Central Bank of Kenya & 2 others Civil Appeal  No. 26 of 1996 is relevant  in this matter where it stated;

‘’    There is no one case cited to show that an application in a suit once decided  by courts of competent jurisdiction can  be filed once again for rehearing.  This shows only one intention on the part of the legislature …………  that  is the say, there must be an end to applications for similar nature: that is to say further, wider principles of res judicata apply to applications within a suit.’’

13.      That for reasons set out in 10 to 12 above, I find  the issues raised  for  determination in this application had been conclusively decided in this court’s ruling of 13th November, 2014 in Busia H.C. Misc. Application  number, 108  of 2015 which was between  the Applicant and 1st Respondent herein.  The application is therefore res judicata and hence an abuse of the courts process and the 1st Respondent’s counsel’s preliminary objection is upheld. The application dated 17thDecember,  2014 is struck out and dismissed with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON  23RD DAY OF APRIL, 2015.

IN THE PRESENCE OF   ABSENT…………………………….APPLICANT

PRESENT  ……………………… 1ST RESPONDENT

MR. MAKOKHA  FOR MR. IPAPU FOR 1STRESPONDENT..COUNSEL.

JUDGE.