Mwakeo & 480 others v Mohamed & another (Environment & Land Case 300 of 2013)  KEELC 13811 (KLR) (25 October 2022) (Ruling)
Neutral citation:  KEELC 13811 (KLR)
Republic of Kenya
Environment & Land Case 300 of 2013
NA Matheka, J
October 25, 2022
Said Matano Mwakeo & 480 others
Ali Said Mohamed
Soud Said Mohamed
1.The defendant/ respondent raised a preliminary objection to the plaintiff/ applicant's originating summons dated December 19, 2013 on the grounds of the provisions of the law under section 7 of the Civil Procedure Act cap 21.
2.The plaintiffs filed the originating summons herein dated December 19, 2013 seeking order of proprietorship of the property known as plot No 1/11/ MN CR No 1135 by way of adverse possession. The defendants filed a defence and counter claim dated February 8, 2016 opposing the plaintiffs' claim and also stated that, there is another case No HCCC No 375 of 2010 which is in respect of the same subject matter; i.e. plot No 1/11/ MN CR 1135 and same parties. The plaintiffs in this later case were also seeking adverse possession of the same subject matter.
3.On January 28, 2019, the High Court Honourable Justice C Yano, after hearing the HCCC No 375 of 2010, dismissed the plaintiffs' claim for adverse possession and allowed the defendants' counter claim and ordered the plaintiff' to vacate the suit property within 60 days failure of which an order of eviction to issue against the plaintiffs.
4.The respondents submitted that the doctrine of res judicata does not stop any person from bringing a genuine claim such as the present one. That the plaintiffs’ claim is not akin or recalled to the previous matter. That the current case involves two different claimants seeking different remedies and not any matter already decided by any court of competent jurisdiction.
5.This court has considered the application and submissions therein. The doctrine of res judicata is set out in the Civil Procedure Act at section 7 as follows:
6.The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms:
7.Therefore, for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. In the case of Henderson vs Henderson (1843-60) All ER 378, the court held that;
8.It follows then that a court will apply the doctrine in instances where a party raises issues in a subsequent suit, wherein he/she ought to have raised the issues in the previous suit as between the same parties.
9.In that respect, the Court of Appeal held in the case of the Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others, (2017) eKLR, that:The court went on to state on the role of the doctrine:
10.The defendants submitted that on January 28, 2019, the High Court Honourable Justice C Yano, after hearing the HCCC No 375 of 2010, dismissed the plaintiffs' claim for adverse possession and allowed the defendants' counter claim and order the plaintiff' to vacate the suit property within 60 days failure of which an order of eviction to issue against the plaintiffs. That case No HCCC No 375 of 2010 was in respect of the same subject matter; ie plot No 1/11/ MN CR 1135 and had the same parties.
11.Indeed, I find that the subject matter is the same and the parties are similar. In applying the stated law to the facts before me, it is clear that the plaintiffs seek to open issues that were raised in the earlier proceedings on ownership. In my view, by filing this suit, the plaintiffs are trying to litigate a concluded matter. In the case of Diocese of Eldoret Trustees (Registered) vs Attorney General (on behalf of the Principal Secretary Treasury) & another (2020) eKLR the court held that;
12.I find that this suit is res judicata and an abuse of the court process. The application has merit and the preliminary objection is upheld. I therefore strike out the plaintiffs’ case with costs to the defendants.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 25TH DAY OF OCTOBER 2022.N.A. MATHEKAJUDGE