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|Case Number:||Environment and Land Case 245 of 2017|
|Parties:||Maurice Olwal Olwal v Michael Otieno Wagude & Registrar Lands Kisumu|
|Date Delivered:||22 May 2020|
|Court:||Environment and Land Court at Kisumu|
|Citation:||Maurice Olwal Olwal v Michael Otieno Wagude & another  eKLR|
|Court Division:||Environment and Land|
|Case Outcome:||Application allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO. 245 OF 2017
MAURICE OLWAL OLWA.............................................PLAINTIFF
MICHAEL OTIENO WAGUDE..............................1ST DEFENDANT
THE REGISTRAR LANDS KISUMU....................2ND DEFENDANT
The Preliminary Objection is dated 17th September, 2018 filed by the defendant on grounds that the matter is res-judicata and that the plaintiff has no locus standi and that he is meddling with the property of the deceased.
The 1st defendant submits suit number ELC 13 of 2015 was between the plaintiff and defendant herein. The parties were litigating under the same title. The issues herein were determined in suit No. ELC 13 of 2015. The court in ELC No. 13 of 2015 was competent to try the suit and subsequent suit. The plaintiff on his part submits that the two cases present two different causes of action. One was based on eviction and the other on fraud.
I have considered rival submissions and do find that in ELC No. 13 of 2015, the parties were Michael Otieno Wagunde, plaintiff and Morris Olwal, defendant. The dispute revolved on ownership of parcel number Kisumu/Dago/566. The court found the plaintiff to be the absolute and indefeasible owner of the property and that no challenge to his title has been mounted as required by law. He was ordered to enjoy the full right of the property.
In ELC no. 245 of 2017, the parties are the same thus Maurice Olwal Olwal as plaintiff and Michael Otieno Wagunde as the 1st defendant and the Land Registrar, Kisumu as the 2nd defendant. The dispute revolves on ownership of Kisumu/Dago/566. The issues of ownership raised in suit No. 245 of 2017 were supposed to be raised in ELC No. 13 of 2015.
I do find that the issues raised in 245 of 2017 which is the ownership of have technically been determined in ELC 13 of 2015. The plaintiff has come before the same court that determined the ownership of the same property, thus parcel number Kisumu/Dago/566.
I do find that the suit herein is res-judicata and an abuse of court process and is hereby struck out. Costs to the defendant.
DATED, DELIVERED and SIGNED THIS 22nd .DAY OF MAY, 2020.
ENVIRONMENT & LAND
This judgment is hereby delivered to the parties by electronic mail due to the measures restricting court operations due to COVID -19 pandemic and in light of directions issued by the Honourable Chief Justice and with the consent of the parties.
ENVIRONMENT & LAND