Peter Omukaga Ochom, Michael Okemer Obaraza & Fredrick Namai Okemer v Wenzelaus Ochuo, Clement Etyang, Leonard Wawire Paul, Pascal Amaiya Odenyo, Land Registrar Busia & Attorney General [2015] KEHC 5412 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 207 OF 2014.

1.  PETER OMUKAGA OCHOM       ]

2.  MICHAEL OKEMER OBARAZA ]……………PLAINTIFFS/APPLICANTS

3.  FREDRICK NAMAI OKEMER     ]

=VERSUS=

1.  WENZELAUS OCHUO                ]

2.  CLEMENT ETYANG                   ]

3.  LEONARD WAWIRE PAUL         ]……….. DEFENDANTS/RESPONDENTS.

4.  PASCAL AMAIYA ODENYO       ]

5.  THE LAND REGISTRAR BUSIA]

6. HON. ATTORNEY GENERAL     ]

R U L I N G.

PETER OMUKAGA OCHOM, MICHAEL KEMER OBARAZA and FREDRICK MAMAI  OKEMER,hereinafter  referred to as the 1st  to 3rd Applicants  filed the notice of motion dated  24th November, 2014  contemporaneously with the plaint of the same date for six prayers.  Prayers 1, 2, and 4 have been spent through the Deputy Registrar’s  order of 24th November, 2014. The remaining  prayers  which are subject matter of this ruling are as paraphrased herein below;

Spent.

Spent.

That there be temporary stay of execution  of the judgment  in Busia ELC. No. 46 of  2014 pending  the hearing and determination of this suit.

Spent.

That  a temporary injunction do issue restraining  the 1st  to 4th Respondents  from surveying and further interfering with the land register in respect  of land parcel South Teso/Apokor/21.

Costs of this application be in the cause.

The Applicants have named WENZELAUS OCHOU, CLEMENT ETYANG, LEONARD WAWIRE PAUL, PASCAL AMANYA ODENYO, THE LAND REGISTRAR, BUSIA, and  the ATTORNEY GENERAL as the 1st to 6th Respondent respectively and will be referred to  as such hereinafter.

The Applicants have set out 11 grounds  on the application. The Application  is also based on the supporting and supplementary  affidavit  of the 1st  Applicant sworn  on 24th November, 2014 and 13th  February, 2015.

The application is opposed by the 2nd to 4th Respondent, through the 2nd Respondent’s replying affidavit, sworn in 22nd January, 2015. The 1st, 5th and 6th  Respondents  did not file any replying  papers.

During the hearing, Mr.  Osango and Murunga for the Applicants and Respondents respectively made their submissions.

ISSUES FOR DETERMINATION.

Whether the issues raised in this suit are res judicata in view of the court’s  decision in Busia  ELC No. 46 of 2014 (Formerly HCC. No. 25 of 2010).

Whether  the execution  of orders in Busia ELC. No. 46 of 2014 will prejudice the Applicants’  claim in this case.

Whether the Applicants have complied with the requirements set out in Giella –vs- Cassman  Browncase that  are precedent to the issuance of injunctive orders.

ANALYSIS OF THE EVIDENCE AND SUBMISSIONS.

That  the Applicant’s claim  as shown in the plaint dated 24th  November, 2014  is for a declaration that 1st to 4th  Respondents are registered  with land parcel south  Teso/Apokor/21 as  their  trustees.  They also  pray that the Respondents  be ordered to transfer  the portions of land  they occupy measuring  about  two acres to each of them as the 1st Respondent has failed  to do so.  The Applicants have disclosed in paragraph 5 of the supporting affidavit  that they are sons  to the 1st Respondent while the 2nd to 4th  Respondents  are their cousins.  It is therefore very unlikely that the Applicants did not know of the existence of Busia ELC No. 46 of  2014 in which  their father was the Defendant and the 2nd  to 4th  Respondents  were the Plaintiffs.

That the Applicants  right to the suit land, South Teso/Apokor/21, is by virtue of being children of the 1st Respondent.  The Applicants’ entitlement  can only  be limited  to the portion of land that belongs to their father.  That portion  has already been restated as a quarter share of South  Teso/Apokor/21 through this court’s  judgment in Busia  ELC. No. 46 of 2014. From the facts presented to this court, none of the parties in Busia ELC. No. 46 of 2014 has preferred any appeal or review application to the court’s judgment.

That having  found that the Applicants’  claim or interest over South Teso/Apokor/21 is limited to what their father, the 1st Respondent, owns and considering this suit is not based on adverse possession by virtue of the pleadings filed the court finds no basis of issuing  stay  orders to the judgment  of Busia ELC. No. 46 of 2014  as the Applicants have failed to satisfy  any of the principles set out in Giella –vs- Cassman Brown, [1973] E.A.358.

That the Applicants’  could have applied to be enjoined in Busia ELC. No. 46 of 2014  if they had any independent  claim  over the subject matter  of the suit  separate from that of their father, the 1st Respondent , but  did not do so. The Applicants’ interests and  that of all those claiming from the 1st Respondent  over the suit land has already been determined in Busia ELC. No. 46 of 2014. The 1st Respondent cannot be allowed to  hide behind the Applicants  who are his sons to defeat or delay the execution  of a lawful court order by seeking for stay of judgment in Busia ELC. No.  46 of 2014 which was made on merit.

That the 2nd  to 4th  Respondent  averred at paragraph 14 (a)  (b)  and (f)  of their joint statement  of defence, dated 14th January, 2015  that the Applicants  suit is res judicata and an abuse  of the courts process. The  defence must have been served by the time the application  was heard in view of the contents of paragraph 4 of  the supplementary  affidavit sworn by 1st Applicant on 13th February, 2015 and the submission by the Applicants’ counsel that the suit is not res judicata. Even  though the applicants were not parties in Busia ELC. No. 46 of 2014, their interests over the suit land are not independent of that of their father who was the defendant. The decision in the said case settled the interest of the Applicants’ father to the suit land and unless  this court’s decision is varied by the Superior court in accordance with the law, this court cannot sit on appeal of its own decision as this would be contrary to Section 7 of the Civil Procedure Act.  This suit is  res judicata and therefore an abuse  of the courts process.

That this court is enjoined under Article 159 (b)  and (d)  of the Constitution to ensure justice is not delayed and is administered without undue  regard to procedural technicalities.  In light of the foregoing, the court finds that;

That  the application dated 24th November, 2014 is without  merit and is hereby dismissed  with costs.

The court further finds that the issues raised in the plaint dated 24th November, 2014 have already been decided on merit  in Busia ELC. No. 46 of 2014  and the plaint is hereby struck out  and suit dismissed  for being res judicata  with costs to the 2nd to 4th Defendants/Respondents.

It is so ordered.

S.M. KIBUNJA.

JUDGE.

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

IN THE PRESENCE OF;……ABSENT ……………………….PLAINTIFFS/APPLICANTS

1ST & 4TH …………………….DEFENDANTS/RESPONDENTS.

N/A……………………COUNSEL FOR APPLICANTS

N/A………………………COUNSEL FOR RESPONDENTS.

JUDGE.