Analysis and Determination
3.Upon consideration of the Notice of Preliminary Objection dated 5th August, 2020 including the rivalling submissions, the only issue for determination is whether this Honourable Court should strike out the Petitioners’ Notice of Motion application including Petition both dated the 14th August, 2019 with costs.
4.The Interested Party in its submissions provided a background of the dispute herein and highlighted the findings of the Panel hearing the dispute. It insists the decision of the Minister was final pursuant to Section 29(1) (b) of the Land Adjudication Act and could only be challenged by way of Judicial Review. Further, that the Petitioners had filed this Petition more than two year seeking to challenge the 1st Respondent’s decision. It reiterates that its Preliminary Objection is merited. Further, that this court has no jurisdiction to entertain the instant Petition. It contends that the Minister’s decision is final hence the instant Petition is res judicata as the Petitioners failed to challenge the Minister’s decision by way of judicial review. Further, that the instant Petition is tantamount to seeking an Appeal against the Minister’s decision through the back door. It states that the Petitioners did not exhaust the remedy set out in the Land Adjudication Act. To buttress his arguments, he relied on various relevant decisions including: Mukhisa Biscuits Manufacturing Co. Ltd Vs West End Distributors (1969) EA 696; Speaker of the National Assembly Vs Karume (1992) eKLR; Mwangi Njangu Vs Meshack Mbogo Wambungu & Another HCC No. 234 of 1991 (unreported) and Lepore Ole Maito Vs Letwat Korton & 2 Others (2016) eKLR.
6.The Interested Party seeks to have the Petition and the Notice of Motion Application herein struck out with costs for being res judicataand contrary to Section 29(1) of the Land Adjudication Act, which Notice of Preliminary Objection is opposed by the Petitioners.
7.On perusal of the Petition herein, I note the fulcrum of the dispute revolves around fair administrative action as the Petitioners’ allege that they were denied the right to call witnesses; were not informed of other dates for further hearing; were not aware of the date set for the visit to the locus in quo and the outcome of the decision was not communicated to them in time. They further contended that they only learnt of the judgement when they applied for proceedings and noted the said judgement was delivered on 28th June, 2017 which fact was never communicated to them. The Respondents though duly served did not oppose the Petition and the Notice of Motion application but Interested Party filed the instant Notice of Preliminary Objection to oppose the Petition including Notice of Motion.
8.The doctrine of res judicata is set out in the Civil Procedure Act at Section 7 as follows:
9.The Civil Procedure Act provides explanations with respect to the application of the res judicata rule. Explanations 1-6 states thus:
12.Further in the case of Avtar Singh Bhamra & Another Vs Oriental Commercial Bank, Kisumu HCCC No. 53 of 2004,the Court held that:-
13.From the legal provisions cited above, it is pertinent that for a party to rely on the doctrine of res judicata, the decisions must emanate from the same court with competent jurisdiction. In this instance, the Interested Party has not provided any court decision that determined the issues raised in the Petition concerning the resolution of the dispute herein. Further, since the Petition has raised constitutional issues touching on fair administrative action and right to be heard, I opine that for the doctrine of res judicata to apply, in this instance, there should be demonstration that the same issues have been heard and determined by court of competent jurisdiction; same parties litigated under the same title and issues have been raised once more with the same parties, which is not the case herein. In the circumstance, I decline to strike out the Petition and instant application on this ground.
16.In this instance, the Petitioners have claimed that the Respondents failed to grant them proper audience while dealing with the Appeal. Further, they were not aware of the verdict from the Appeal and learnt of the same much later. Insofar as the Interested Party has raised important issues, it is trite that he should have filed a reply to Petition to deny the Petitioners’ averments first and anchor his Preliminary Objection. To my mind the Interested Party’s averments also require evidentiary proof.
17.From the explanation in the Petition including the supporting affidavit which remains uncontroverted, it is my considered view that the Respondents breached the rules of natural justice as well as fair administrative action culminating in the Petitioners filing the instant Petition. Insofar as Section 29(1) of the Land Adjudication Act stipulates that verdict from an Appeal to the Minister is final, in associating myself with the decisions cited above as well as relying on Articles 47 and 50 of the Constitution that makes provisions on the right to be heard as well as right to fair administrative action, I will decline to strike out the Petition on this point.
18.It is against the foregoing that I find the Notice of Preliminary Objection dated the 5th August, 2020 unmerited and will disallow it.
19.Costs will be in the cause