John Maswili v Munywoki Kise, Nzomo Munywoki, Masila Munywoki & Vavu Munywoki [2018] KEELC 4668 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT AND LAND  COURT  AT MAKUENI

ELC  191  OF 2017

FORMERLY  MACHAKOS  ELC 58 OF 2016

JOHN  MASWILI ---------------------------------------  PLAINTIFF/RESPONDENT

VERSUS

MUNYWOKI KISE------------------------------ 1ST DEFENDANT /APPLICANT

NZOMO MUNYWOKI-------- ------------------ 2ND DEFENDANT/APPLICANT

MASILA MUNYWOKI ---------------------------- 3RD DEFENDANT/ APPLICANT

VAVU MUNYWOKI ------------------------------  4TH DEFENDANT /APPLICANT

RULING

1) By their  notice of  motion application dated 29th August, 2017 and filed in court on 31st August, 2017, the defendants/applicants   pray for order that;-

1. That the plaint dated 20/7/2016 be struck off for being Res Judicata and all  orders issued  herein be set aside and or discharged.

2. That the County Land Registrar and or surveyor be ordered to rectify and or amend the register, the map and the physical delineations of the suit properties to comply with the order issued on 30/7/2012 in Misc. Civil Application No. 257 of  2006.

3. That  the costs of this suit  and application be borne by the plaintiff/respondent herein.

2)The application is expressed to be brought  under sections 1A, 1B, 3A and 7 of the  Civil Procedure Act order 40 rule 7 of  the Civil Procedure Rules  and all other enabling provision of the law.  It is  predicated on the grounds on its face and supported by the affidavit of Munywoki Kisese sworn on the 29th  August, 2017. It is opposed by the replying affidavits of John Maswili Mulwa, the plaintiff/ respondent herein, sworn on the 19th September, 2017 and filed in court on the 27th September, 2017. On the 18th October, 2017 both parties agreed to dispose off this application together with the plaintiff application dated 19th September, 2017 by way of written submissions.

The latter application is for orders:

1. That  this honourable court  be pleased to adopt a report of surveyor dated 9/5/2017 made pursuant to the court  order made on  3/3/2017 as judgement of the  court

2. Costs do abide the application

3) The application is predicated on the grounds on its face and is supported by the affidavit of John Maswili Mulwa, the applicant herein, sworn on the 19th September, 2017.  It is opposed by defendants/Respondents vide replying affidavit of Munywoki Kisese, the first defendant/Respondent herein, Sworn  on the 17th  October, 2017and   filed in court on the 18th October, 2017.

4)The  plaintiff’s counsel’s  submissions are in respect of the two applications while those by the defendants’ counsel are confined to their application dated 29th August, 2017 .

5)Regarding their prayer for striking  out the plaint dated 20th July, 2017 for being  res judicata and  all orders issued  herein  being set aside and or discharged,  the defendant’s counsel referred the court to section 7 of the Civil Procedure Act as well  case of Bernard Mugo Ndegwa Vs James Nderito Githae & 2 others (2010) eKLR.

The  authority  sets out  the test for determining  whether a matter is res judicata.  The test  is;

a. That  the matter directly and substantially in issue in the subsequent suit must have been the same matter which was directly and substantially in issue in the former suit.

b. That the former suit must have been between the same parties or between the parties under whom they or any of them claim.

c. That  the parties must have litigated under the same title.

d. That the former suit must have been tried by a Competent Court.

e. That the former suit must have been heard and finally decided by such  Competent Court.

6)The counsel  submitted that the matter in issue in this case is between the same parties as it was before the Makueni District Land Dispute Tribunal and Miscellaneous Civil  Application No. 257 of 2006. The counsel pointed out that John Maswili Mulwa  the plaintiff herein was the 1st ex-parte party in the aforementioned  miscellaneous civil application and the  1st objector in the Makueni Lands Dispute Tribunal case number 26 of 2004. He went on to submit that the 1st defendant herein, Munywoki Kisese was the 1st interested party in the same miscellaneous civil application   and the claimant  in the aforementioned  Lands Dispute Tribunal Case.  The counsel  further submitted that the 2nd, 3rd and 4th Defendants are the sons of the 1st defendant, Munywoki Kisese.

7) The   counsel cited  the case of  Omondi Vs National Bank of Kenya Ltd & Others (2004) EA 177 where it was held that parties cannot  evade the doctrine of   res judicata by adding other parties  or causes of actions in a subsequent suit. The counsel pointed out that Makueni Lands Dispute Tribunal Case No. 26 of 2004 and Misc Civil application no. 257 of 2006 were tried by competent courts and finally determined by courts which  had jurisdiction to deal with the matters before them.  The counsel added that it is evident that parties litigated under the same title in both suits.

8) On the issue of whether or not the County  Registrar and/or Surveyor should be ordered to rectify  and/ or amend the register, the map and the physical delineation of  the suit premises to comply with order issued on 30th July, 2017 in Misc Civil application number 257 of 2006, the defendants counsel submitted that the said order was not challenged by way of appeal or any other means prescribed by law and as such,  it should be reinforced by this court.

9) On the issue of whether or not the plaintiff/respondent should bear the costs of this application, the defendant’s counsel submitted that it is clear that the plaintiff/respondent is gambling with the justice system such that when he is not awarded judgement by one court,  which he is not satisfied  with,  he tries another court  to see whether he can hopefully raise his stakes.  The counsel added that this is great hardship to the defendants/applicants as they are forced to litigate twice for the   same case, an issue the counsel termed as unacceptable. As such, the counsel submitted, the costs of the application should be borne by the plaintiff/respondent.

10)The  counsel for the plaintiff submitted that the defence  dated 27th September, 2016, as  well as the replying affidavit deponed on the same date never  raised the issue of res judicata.  The  counsel went on to submit that since the defendants in their defence  insist that they are on land parcel number 610 and deny encroachment  on land  210, this  is an issue that  the court  needs to  settle. The counsel added that the plaintiff’s title has no encumbrance and has never been  challenged in any court of law.

11)Regarding Misc. No. 257 of 2006 filed by the defendants, the  plaintiff’s  counsel submitted that the defendants have failed to disclose to this court what the issues for determination  were in the said application  and how they were resolved and pointed out that eviction was not one of the  issues. The counsel added that the application did not  decide the rights of any of the parties and that it was simply dismissed.

12)Regarding the issue of the award of the Tribunal  whose number the counsel did not  disclose, his submissions were that the  award only touched  on the boundaries and not title and that on 6th June, 2015, the defendants withdrew the issue of boundary and as such, the counsel wondered how the rights of the parties were determined  by a competent court.

The counsel termed the defendants notice of motion application 29th August, 2017 as mischievous and an abuse of the court and should therefore be dismissed with costs. The counsel went on to submit that the report dated 19th May, 2017 has not been challenged or appealed  against and urged  the court to adopt it as it is expert evidence. The  counsel relies on two authorities, copies of which he did  not  supply to the court nor did he provide in their correct citation.

14)Having  read the two applications and the  submissions filed, the issues for determination in my view, are:-

a)Whether or not the plaint dated 20th  July, 2016  is res judicata

b)Whether  the county Land Registrar and/or Surveyor should be ordered to  rectify  and/or amend the register, the map and physical  delineations  of the  suit  properties to comply with order issued on 30th July, 2012 in  Misc.Application no. 257 of 2006

c) Whether or not  the surveyors report dated 9th May, 2017 should  be adopted.

15)On the issue of whether or not the plaint dated 20th July, 2016 is res judicata section 7 of the  Civil Procedure Act chapter 21 of the laws of Kenya provides that;

“ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same  parties, or between parties under whom they or any of them claim, litigating under the same  title, in a  Court competent to try such subsequent suit or the suit in  which  such issue has been subsequently raised, and has been heard and  finally decided by such Court”

16)As was submitted by Mr. Mulei  Advocate for the defendants/Applications in the application dated 29th August, 2017, the test for determining whether or not a matter is res judicata was set out in the case of Bernard Mugo Ndegwa Vs  James  Nderito Githae & 2 others [2010] eKLR as follows;

a) That  the matter directly and substantially in issue in the subsequent suit must have been the same matter which was directly and substantially in issue in the former suit.

b) That the former suit must have been between the same parties or between the parties under whom they or any of them claim.

c) That  the parties must have litigated under the same title.

d) That the former suit must have been tried by a Competent Court.

e) That the former suit must have been heard and finally decided by such  Competent Court.

It is worth noting that under  section 7 of  the Civil Procedure Act,  a suit is not res judicata  if the former suit was heard by a court or  tribunal which did not have jurisdiction.  Munyao J  has this to say in the case of Vincent Kiprosngok Rotich Vs Orphah Jelagat Ngetich [2014] eKLR.

“It is apparent  from reading  of section  7 of the Civil Procedure Act that res judicata will not apply where former suit was heard by  a court or tribunal which did not have jurisdiction...”

17) From  the Judicial Review proceedings in Machakos High Court  Misc Civil Application number 257 of 2006 marked as annexure MK -1  in paragraph 2 of the defendants/applicant’s supporting affidavit dated the 29th August, 2017 Munywoki Kisese (the first  defendant herein)  was the claimant in Makueni Land Disputes Tribunal Case Number 26 of 2004. Maswili Mulwa (the plaintiff herein) was the first respondent in the  aforementioned Tribunal case. Munywoki Kisese was one of the claimants in the case in question. This is not denied by the plaintiff. In their statement of claim dated 12th October, 2004 Munywoki Kisese (the defendant herein) and his co-claimants accused  Maswili Mulwa (the plaintiff herein) of :-

a) Encroachment into their  land

b) Interferance of the original boundaries

c) Occupying and working on their land

d) Trespassing on their  land

As can be seen from   annexure MK-1, the dispute involved boundaries to land parcels numbers Nzaui/Kilili/610, Nzaui/Mumbuni/210 Nzaui/Mumbuni/211, Nzaui/Mumbuni/214, Nzaui/Kilili/616, Nzaui/Mumbuni/212 and Nzaui/Mumbuni/471. The land Disputes Tribunal allowed  Munywoki Kisese  and  his co-claimants claim and directed: “ the surveyor to draw the boundary as it is on the ground.  The Land Disputes Tribunal award was adopted by Makueni Senior Resident Magistrate’s  Court on 11th October, 2006.

18) Maswili  Mulwa and his co-respondents did  not  appeal against the Tribunals award. They instead choose to commence Judicial  Review  proceedings vide Mks Civil Application number 257 of 2006 (annexure MK-1)

19)The respondents who were the applicants in the aforementioned Judicial Review proceedings complained that the Land Disputes Tribunal  had no jurisdiction to entertain the claim since the boundary dispute touched on parcels of  land registered in the names of deceased persons.  The application was dismissed on the 30th July, 2012. Thus the Land Disputes Tribunal award which had been adopted by the Makueni Senior  Resident Magistrate’s  court as it’s judgement remained unchallenged.

20) Mr.  Tamata for the plaintiff has submitted that what is in issue  herein is eviction as can be seen from prayer 1 of the plaint dated 20th July, 2016 . It is not lost on me that on the 27th July, 2016 plaintiff filed the notice of motion application dated the same day. Prayer 2 of the applications sought an order to direct Makueni County Surveyor to determine the boundary between land parcels number Nzaui/Mumbuni/210 and Nzaui/Kilili/610. The application was allowed vide the court’s ruling dated the 3rd March, 2017 and the following orders were issued:-

a) The Makueni District Land Register and the surveyor to visit  parcels of land numbers Nzaui/Mumbuni/210 and Nzaui/Kilili/610 and locate the position of each land  viz a viz each other

b) The Makueni District Land  Registrar and the surveyor to file their report in this court within sixty (60) days from the  date of this ruling

c) The status  quo prevailing  now be  maintained pending the hearing of the  suit or further orders of this court

21) In his plaint, the plaintiff prays for an order of eviction against the defendants. Though he has not pleaded the basis upon which the order for eviction is sought, the inference to be drawn is that the defendants have trespassed into Land Parcel Number  Nzaui/Mumbuni /210 owned by the estate of Mbili Mulwa Syulwa. If this  is purely a question of  trespass, then why did the plaintiff file the aforementioned application dated 27th July, 2016? Why does he want the boundary between Nzaui/Mumbuni/210 and Nzaui/Kilili/610 ascertained? In my view the plaintiff  is  seeking  the same  orders that  were dealt by the  Land Disputes  Tribunal in Tribunal  Case 26 of 2004 and later made Judgement in Makueni Senior  Resident Magistrate’s  court LDTC No. 39 of 2006 which judgement remained  unchallenged after miscellaneous civil application No. 257 of 2006 was dismissed.

22) On  the issue of whether or not the land  Disputes Tribunal had jurisdiction  to deal with the issues before it which  related to boundary and trespass, section 3 of the Land Dispute Tribunal Act, (now repealed) provided  for :-

“Subject to this Act all cares of  civil  nature involving a dispute to;

a) The division of , or  the determination of boundaries to  land, including  land  held in common,

b) A claim  to occupy or work land; or

c) Trespass to land shall be heard and determined by a  Tribunal established under section 4. ”

23) As  submitted by the defendants’ counsel jurisdiction was raised in the judicial  review proceedings. This issue was determined when the High Court in the Judicial review proceedings dismissed the application.

24)Arising  from the above it is clear that the Land Disputes Tribunal had Jurisdiction in  case  No. 26 of 2004.

25)As earlier on stated, the tribunals award was made judgement of the court in Makueni Senior  Resident Magistrate’s court in LDTC no. 39 of 2006. As observed in my ruling, the main issue in the matter before me is a boundary dispute between land parcels numbers Nzaui/Mumbuni/210 and Nzaui/Kilili/610, an issue that was heard and determined in the aforementioned cases. I have already  held  that the plaintiff and the first defendants were parties in the two  aforementioned cases.  The second, third and fourth defendants herein are the sons of the first defendants. The dispute clearly falls within Section 7 of the  Civil Procedure Act notwithstanding the fact the defendants herein never raised the  preliminary objection in their  defence.

In my view the preliminary objection can be raised at any time just like the defendants did. As such, I hold that the plaint dated 20th July, 2016 is res judicata.

26)Should the County  Land Registrar  and or  surveyor be ordered to rectify and or amend the register, the map and physical delineation  of the suit properties to comply with the order issued on the 30th July, 2012 in Misc Application number 257 of 2006?

In my view the prayer in the notice of motion  application dated 29th August, 2017 has no legs to stand on as it is not  grounded in the defendant’s defence dated 27th September, 2016 and filed in court on 28th September, 2016.  And besides, the court having found the suit to be  res judicata, the only recourse is to strike out the suit.

27) Should the Surveyor’s report dated 9th May, 2017 be adopted? Again for the reason that I have just given herein above, my answer to this question is in the negative.

28)Parties herein have litigated over this issue  for close to fourteen (14) years.  Both have  contributed to the delay in resolving and implementation  the judgement in Makueni Senior Resident  Magistrate’s Court LDTC 39 of 2006 after the Judicial Review Proceedings were dismissed in Machakos High Court Miscellaneous Civil Application No. 257 of 2006. I am of the view that  under such circumstances, both should bear their own costs.  Consequently, the plaintiff’s application dated 19th  September, 2017 is hereby dismissed.  The defendant’s application dated 29th August, 2017 is allowed in terms of prayer 1.  Each  party to bear his own costs.

29) This  ruling will apply  to ELC 190 of 2017.

Signed , dated and delivered atMakueni  on this5thday of February, 2018.

Mbogo  C.G

Judge

In the presence of;

Mr. Tamata for the plaintiff

Mr.  Mulei for the  defendant

Mr. Kwemboi Court Assistant

Mbogo C.G

Judge

5/2/2018