IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MUSINGA, GATEMBU & MURGOR, JJ.A.)

CIVIL APPLICATION NO. 66 OF 2016 (UR 35/2016)

BETWEEN

GEORGE KAMAU KIMANI..................................................................FIRST APPLICANT

REDEMPTA KIPROP......................................................................SECOND APPLICANT

FRANCIS C. NJUGUNA......................................................................THIRD APPLICANT

PENROSE NDUBI............................................................................FOURTH APPLICANT

STEPHEN YEGO....................................................................................FIFTH APPLICANT

AND

THE COUNTY GOVERNMENT OF TRANS-NZOIA.........................FIRST RESPONDENT

NATIONAL HOUSING CORPORATION.......................................SECOND RESPONDENT

(Application for injunction from the ruling of the High Court of Kenya at Eldoret (Ombwayo, J.) dated 12^th August, 2016

in

ELC NO. 88 OF 2015)

*******************

RULING OF THE COURT

  1. The applicants and the respondents are locked in a dispute relating to the applicants’ occupation of  five residential houses known as Cherangani Estate, (hereinafter “the suit premises”), within Kitale  Town. The applicants contend that the suit premises belong to the National Housing  Corporation, the 2^nd respondent, since they had  entered into lease agreements over the suit  premises with the 2^nd respondent.

  2. Sometimes in May, 2013 the 1^st respondent served  the applicants with notices of termination of  tenancy, having taken over the assets of the former  Municipal Council of Kitale, the owner of the suit   premises.

  3. The applicants moved to court to challenge the said notices and filed Environment and Land Court  Case No. 66 of 2013 (Case No. 66 of 2013) but the  suit was struck out on a point of law vide a ruling delivered by Obaga, J. on 4^th June, 2014. The applicants did not prefer an appeal against that  ruling.

  4. On 9^th June, 2014 the 1^st respondent attempted to  forcefully evict the applicants. To forestall the forceful eviction, the applicants executed a written undertaking to move out of the suit premises by 11^th June, 2014. But instead of moving out on the  due date, the applicants filed Environment and  Land Case No. 88 of 2015 (case No. 88 of 2015) at  Eldoret, claiming that the earlier suit No. 66 of 2013 was struck out on a technicality; and that they had signed the undertaking under duress.

  5. The 1^st respondent filed an application to strike out the said suit, No. 88 of 2015, and also prayed for an order to evict the applicants from the suit premises. The application was premised on the argument that the suit was res judicata in view of the  determination by Obaga, J. in case No. 66 of 2013 which was between the same parties, wherein the   learned judge held, inter alia, that the applicants’  leases were not registered and were therefore unenforceable;  that no appeal had been preferred against the said ruling; and that the suit amounted  to violation of the undertaking given by the applicants to vacate  the suit premises.

  6. The trial judge, Ombwayo, J; in a ruling delivered   on 12^th August, 2016, allowed the application, agreeing with the 1^st respondent, that the  subsequent suit was res judicata as the suit involved the same parties and the same issues as in case No. 66 of 2013, whose ruling had not been  challenged by way of an appeal. The learned judge  further held that the suit amounted to abuse of the  court process, in view of the explicit undertaking  that had been given by the applicants to the 1^st respondent.

  7. Being dissatisfied with that ruling, the applicants   filed a notice of appeal, on the basis of which they filed an application before this Court for an interim injunction to restrain the respondents from evicting them from the suit premises, pending filing of the record of appeal, hearing and determination of the intended appeal. That application is the subject  matter of this ruling.

  8. Mr. Nyamu, learned counsel for the applicants,  relying on an affidavit sworn by the 1^st applicant,  which basically narrates the history of the dispute,   submitted that the applicants have an arguable appeal; that if the order sought is not granted the applicants will be evicted from the suit premises, in which event the intended appeal if successful will  have been rendered nugatory.

  9. Regarding arguability of the intended appeal,  counsel submitted that existence of lease  agreements between the applicants and the 2^nd  respondent was not in doubt; that the 1^st  respondent had no locus to contest the existence and/or legality of the leases; and that the undertaking to vacate the suit premises was subject  to challenge.

10. The 1^st respondent, through Pius Munialo, the Acting County Secretary, swore a replying affidavit.   He stated, inter alia, that the applicants were employing litigation to continue occupying the suit premises without valid leases and without paying   rent; that Obaga, J. had made a determination about the alleged leases and no appeal had been preferred against that determination; that following the striking out of case No. 88 of 2015 by Ombwayo, J. the applicants had filed another application before the same judge seeking maintenance of the status quo as they decide whether or not to appeal against his ruling, and the learned judge was yet to give his decision on the subsequent application.

11. Prof. Sifuna, learned counsel for the 1^st respondent, submitted that the applicants had not  demonstrated that they had an arguable appeal that  would otherwise be rendered nugatory, having failed  to file a draft memorandum of appeal; that the suit  premises were owned by the 1^st respondent but were being managed by the 2^nd respondent; that a  court of competent jurisdiction had determined that the leases that existed between the applicants and  the 2^nd respondent were not enforceable and struck  out the suit that had been filed by the applicants to  challenge their intended eviction from the suit premises, that the subsequent suit No. 88 of 2015  had also been struck out; that the applicants were attempting to wriggle out of their written undertaking to vacate the suit premises; and that the application before this Court was sub-judice, in view of the pending ruling seeking maintenance of  the status quo before the Environment and Land  Court.

12. Prof. Sifuna urged this Court to dismiss the application for interim injunction, saying that  litigation must come to an end. He added that the  order sought is a discretionary one and the applicants had come to Court with unclean hands,  as they had not paid rent since 2013.

13. We have carefully considered all the material filed   before us as well as submissions by counsel. This  is an application brought under rule 5 (2) (b) of this  Court’s Rules. The twin principles that must be satisfied in an application brought under that rule  are well settled.

To succeed, an applicant must satisfy the Court  that he has an arguable appeal or intended appeal, and that the appeal or intended appeal, as the case may be, if successful, the appeal would be rendered nugatory if the court declines to grant the order sought. See Republic V Kenya Anti-  Corruption Commission & 2 Others [2009] eKLR 31.

14. Although the applicants contended that they have  an arguable appeal, they did not flag out any serious issue that is intended to be raised.   Although an arguable appeal is not one that will  necessarily succeed, an arguable appeal must elicit  at least one cognizable issue, not frivolous  ones.

15. The issue of validity of the leases between the  applicants and the 2^nd respondent was argued and determined in case No. 66 of 2013, way back on 4^th  June, 2014 and since then no appeal has been raised by the applicants. The issue is clearly res judicata.   See section 7 of the Civil Procedure Act. The issue could not be re-opened or re-  litigated in case No. 88 of 2015, even if that  subsequent case involved a different cause of   action, as alleged by  the applicants. The doctrine of issue estopped  would arise.

16. In Trade Bank Limited V L Z Engineering  Construction Limited [2001] E.A.266, this Court,   adopting the definition of issue estoppel in Halsbury’s Laws of England (4^th edition) at page  861 stated:

“An estoppel which has come to be known as Issue Estoppel may arise where a plea of res-judicata could not be established because the causes of action are not the same. A party is precluded from contending the contrary of any precise point which having once already been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue on the first action, provided it is embodgied in a judicial decision is final, is conclusive in a second action between the same parties and their privies. The principle applies whether the point involved in the earlier decision, and as to which the parties are estopped, is one of fact or one of law, or one of mixed fact and law”.

17. The principle of res judicata is intended to bring  finality in litigation. The learned authors of MULLA,  Code of Civil Procedure, 18^th edition [2012] at page 293 states as follows:

“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be re-opened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly or at a later stage. The principle is rooted to the rationale that issues decided may not be re-opened and has little to do with the merit of the decision”.

18. Further, following the striking out of case No. 66 of  2013, the applicants unequivocally undertook to  move out of the suit premises before 11^th June, 2014. The signing of the undertaking was   witnessed by their advocate, Mr. Kiarie. On what  basis can they now seek to extend their stay?

19. In view of the foregoing, we do not think that the intended appeal is arguable. Having come to that  conclusion, we need not consider whether the intended appeal shall be rendered nugatory unless   the interim injunction sought is granted.

20. We would also agree with Prof. Sifuna that the applicants, having failed to demonstrate that they  had paid rent for the suit premises since 2013, are disentitled to the discretionary remedy sought.

21. All in all, the applicant’s application is devoid of  merit. Consequently, it is dismissed with costs. It is so ordered.

DATED and Delivered at Eldoret this 25^th day of November, 2016.

D. K. MUSINGA

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

JUDGE OF APPEAL

A.K. MURGOR

JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR.