County Government of Kilifi v Ricci; National Land Commission & 2 others (Interested Parties) (Environment & Land Case 9 of 2019)  KEELC 14699 (KLR) (9 November 2022) (Ruling)
Neutral citation:  KEELC 14699 (KLR)
Republic of Kenya
Environment & Land Case 9 of 2019
EK Makori, J
November 9, 2022
County Government of Kilifi
The National Land Commission
The Chief Land Registrar
The Attorney General
1.Application for disposal, dated the 25th of March 2022. The Plaintiff seeks under certificate of urgency a temporary injunction to restrain the Defendant from demolishing or interfering with the public use of the Fish Depot built on the 60-meter reserve land adjoining land known as Chembe/ Kibabamshe/427 situate in Kilifi. With costs.
2.A Preliminary Objection thereto dated the 4th of March 2022 was raised by the Defendant which seeks the entire matter and the pending application be struck out, with costs on grounds that this matter is res judicata as the issues raised herein were conclusively determined as between the parties in ELC Case No. 178 of 2013 Daniel Ricci v Land Registrar Kilifi & Another.
3.The court directed the two motions to be heard simultaneously and the parties filed their respective submissions.
4.To proceed in an orderly manner 1 will propose to deal with the Preliminary Objection first because if it succeeds, it will have a bearing on the manner the entire matter will proceed. If it fails, then I will proceed to deal with the motion seeking a temporary injunction.
The Defendant’s Preliminary Objection
5.Defendant contends that he sued Plaintiff herein and the 3rd Interested Party through ELC NO. 178 of 2013 – Daniel Ricci v County Land Registrar Kilifi & The Hon. Attorney General. Consequently, the matter was heard and judgment delivered in favour of the Defendant herein by Hon. Justice Angote. The parties in that matter were fully represented by counsel and knew the outcome of that case. A decree was duly extracted by the Deputy Registrar of the High Court Malindi.
6.The existence of ELC NO. 178 of 2013 – Daniel Ricci Vs County Land Registrar Kilifi & The Hon. Attorney General according to the Defendant is not disputed. It is admitted in the Plaintiff’s application dated 25th March 2019, in paragraphs 6,10, and 11 of the supporting affidavit sworn by one Bibi Fondo.
7.Defendant has annexed two documents in support of his plea that this matter is res judicata. Annexure BN-4 is the Decree issued by the court showing that the Defendant herein was declared as the rightful owner of the matter property which was in controversy, in that case, the property was neither a fish pond nor Government Land, Gazette Notice that revoked the Defendant’s title declared illegal, and the Defendant’s title reinstated.
8.Annexure BN-5 is an application dated 3rd October 2016, seeking to set aside the judgment of the court in the former matter in which the Plaintiff is named as the 3rd Defendant/Applicant, the Attorney General who was the Principal Legal Advisor of the Government, as well as the County Land Registrar, were parties to the matter.
9.The Defendant avers that the decision of the court was judgment in rem. It settled the question of ownership of the land and is a message to the whole world about who the property owner is.
10.Defendant contends that despite Plaintiff being aware of the position, Plaintiff still went ahead to file and institute matter vide Plaint filed on the 27th March 2019. Which is now the subject of the current Preliminary Objection.
11.The Defendant submits that the Preliminary Objection is hinged on Section 7 of the Civil Procedure Act Cap. 21 Laws of Kenya and seeks the application and the entire matter be dismissed in limine for reasons that the matter is res judicata.
12.The Defendant has quoted the Court of Appeal case of Kenya Commercial Bank Limited Vs Benjoh Amalgamated Limited eKLR which sets out the elements that constitute res judicata -the matter or issue was directly and substantially in issue in the former matter; that former matter was between the same parties or parties under whom they or any of them claim; those parties were litigating under the same title; the issue was heard and finally determined in the former matter, and the court that formerly heard and determined the issue was competent to try the subsequent matter or the matter in which the issue is raised. Defendant concludes that ELC NO. 178 of 2013 – Daniel Ricci v County Land Registrar Kilifi & The Hon. Attorney General, dealt with similar issues raised herein and fully and finally determined the same.
13.On the issue of what constitutes judgment in rem, the Defendant has quoted the case of Abukar G. Mohammed v Independent Electoral and Boundaries Commission  eKLR - that the judgment affects the suit property and that it is directed to the whole world about the property in issue even though some parties could not have litigated over it. The Defendant further quotes the case of Japheth Nzila Muangi v Kenya Safari Lodges & Hotels Limited  eKLR, supporting the same assertions on what constitutes judgment in rem.
Plaintiff’s case and Rejoinder
14.The Plaintiff states the National Land Commission, the 1st Interested Party in this case issued a finding through Gazette Notice No. 6862 dated 17th July 2017, revoking title held by the Defendant and directing the 2nd Interested Party – The Chief Land Registrar to regularize the matter property as a fish landing site and hence public land.
15.The probe and findings of the 1st Interested Party were under Article 62(2) of the Constitution of Kenya and the matter property being public land, ought to enjoy the protection of the law.
16.On the Preliminary Objection raised by Defendant, Plaintiff states that the same does not meet the test laid in Mukisa Biscuits Manufacturing Co. Limited Vs West End Distributors Limited  E. A 696 on page 700, which holds that a Preliminary Objection is primarily a point of law raised with the potential of disposing off a matter if argued successfully.
17.The Plaintiff similarly has hinged the Preliminary Objection on Section 7 of the Civil Procedure Act which provides the threshold for the rule of res judicata to be invoked. The plaintiff has also quoted the case of The Independent Electoral and Boundaries Commission Vs Maina Kiai & 5 Others  eKLR which also expounds on the principles applicable for res judicata to apply.
18.Plaintiff contends that the issues in the former matter were not the same as in this one, the parties were different, and Plaintiff was never a party in that matter even though it could have been a necessary party in the matter who ought to have been joined. The case of C.K Bett Traders Limited & 2 Others v Kennedy Mwangi & Anor.  eKLR is quoted on how to differentiate when a former and a latter matter are similar. Plaintiff concludes that the issues raised in this matter and the parties in ELC NO. 178 of 2013 – Daniel Ricci v County Land Registrar Kilifi & The Hon. Attorney General are incongruent with the current one.
Issues for determination
19.The issues that are for determination in this application are whether the Preliminary Objection raised has achieved the threshold as laid in the case of Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Limited  E. A 696, and whether the current matter is res judicata.
Analysis and determination
20.The Mukisa Biscuits Case has been applied with approval by our courts in so many other cases for instance in the case of Gladys Pereruan v Betty Chepkorir  eKLR, Hon Justice Githinji, quoting several authorities held as follows: -(1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that:a)it discloses no reasonable cause of action or defence in law; orb)it is scandalous, frivolous, or vexatious; orc)it may prejudice, embarrass or delay the fair trial of the action; ord)it is otherwise an abuse of the process of the court, and may order the matter to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”
21.Going by the authorities I have quoted, the Defendant has raised the issue of res judicata, if at the end of the day it is argued and found that this matter is similar to a former one that has already been heard substantially and fully and finally determined by a competent court, on the same issues, which will tend to dispose off the current one, then the Preliminary Objection is relevant and falls within the cornerstone and, in my view meets the threshold of the Mukisa Biscuits Case.
22.From the Plaint this matter seeks prayers as follows: -a)A declaration that the matter property known as Kilifi/Chembe/ Kibabamshe/427 situated in Kilifi County is public land vested in the Plaintiff to hold it in trust of the constituents of Kilifi County; andb)The 1.3 hectares of a marine reserve on which the Fishing Depot is situated is public land and should be cut off from the matter property.c)A permanent Injunction to issue restraining the Defendant either by himself, his agents, servants, or any person under his authority or instructions from demolishing or in any way interfering with public use, access, and occupation of the Fish Depot built on the 60-meter reserve land adjoining land known as Kilifi/Chembe/ Kibabamshe/427.d)An order directed to the 2nd Interested party to register the Plaintiff as the owner of the entire land known as Kilifi/Chembe/ Kibabamshe/427, holding it in trust of the residents of the County of Kilifi and in the alternative, register the Plaintiff as the owner of the land known as Chembe /Kibabamshe/427 measuring 1.3 hectares and forming part of the marine reserve and to hold it in trust of the residents of the Kilifi County.e)An order that the Defendant bears the costs of these proceedings.f)Such other reliefs as the court deems fit.
23.The suit property is said to have been allotted to the Plaintiff according to Part 2 of the 4th Schedule of the Constitution, the Transitional Authority issued Legal Notice No. 149 of 2013 transferring the fish landing station and function of fisheries including demarcation and fencing of fish landing stations to the Plaintiff. After taking over, the Plaintiff built a modern fishing depot at a cost of Kshs 9 million on a 60-meter reserve as per Regulation 110 of the Survey Regulations.
24.ELC NO. 178 of 2013 – Daniel Ricci Vs County Land Registrar Kilifi & The Hon. Attorney General, declared the Defendant herein as the rightful owner of the matter property. The Plaintiff was never joined as a necessary party.
25.The National Land Commission - 1st Interested Party did a probe after complaints from the Government and Public on ownership of the matter property and found that rights in the property ought to inhere in the Plaintiff. The findings are as can be found in Gazette Notice No. 6862, dated 17th July 2017 revoking the Defendant’s title hence this matter.
26.The former suit aforesaid was heard before Hon. Justice Angote - ELC NO. 178 of 2013 – Daniel Ricci Vs County Land Registrar Kilifi & The Hon. Attorney General. It is reported as Daniel Ricci v County Land Registrar Kilifi & another  eKLR. In that case, the Plaintiff sought the following reliefs: -
27.The Judge narrowed the issues for determination as follows: -
28.After hearing the parties, on merit the Judge proceeded to make the following orders: -(f)The Defendants to pay the costs of the matter.”
29.Having established what, we have in this matter and the previous one, I now consider whether the doctrine of res judicata should apply. Parties have cited provisions of the law as well as several authorities on what principles must be considered before a court decides that res judicata should be invoked. Section 7 of the Civil Procedure Act states that: -
30.In the case of The Independent Electoral and Boundaries Commission Vs Maina Kiai & 5 Others  eKLR the Court of Appeal - Makhandia, Ouko, Kiage, M’inoti & Murgor, JJ. A held as follows: -
31.After being guided by the law and the authorities cited, I now consider whether the current matter stands in the way of the res judicata rule.
32.The subject matter in the former matter was land parcel No. Chembe/kibabamshe/427, where the following orders were sought: -
33.The former suit was between the 1st Defendant who was the Plaintiff and the 2nd and 3rd Interested Parties. The Plaintiff and the 1st Interest Party were not parties to the proceeding in the former suit – it is the Attorney General as a Government Legal Advisor, who was present. I can see from the record in the former suit that the Plaintiff attempted to be joined in the matter vide application dated 3rd October 2016. It will seem the parties abandoned it and commenced negotiations as of 2nd October 2017, parties had not agreed on a settlement. The matter was stood over generally and remains so to date. The record in the former suit also shows there was an intended appeal to the Court of Appeal, whose outcome I cannot speculate.
34.Whereas the Plaintiff in this suit was not a party and claims that it was a very necessary party – which I agree – the Attorney General and the Land Register Kilifi, in my view were, capable to take care of the interests of the current Plaintiff in the former suit. They litigated on its behalf. The former being the Government Legal Advisor and the latter the custodian of the land titles and deeds documents.
35.The former matter was heard on merit and all the necessary parties testified, were cross-examined and relevant documents produced. The court rendered its decision on the issues in controversy placed before it and then fully and finally settled on the issues at hand by declaring the following: -
36.The only difference in this suit as stated elsewhere in this ruling is the coming in of the Plaintiff and joinder of the National Land Commission as 1st Interested Party. There was another Gazette Notice which revoked yet again the Defendant’s title as had been done in the former suit. The findings contained in Gazette No 6862 dated 17th July 2017, directed the Land Registrar to do the following: -
37.Having concluded that this suit is similar in all aspects to the former one that is - ELC NO. 178 of 2013 – Daniel Ricci v County Land Registrar Kilifi & The Hon. Attorney General, reported as Daniel Ricci v County Land Registrar Kilifi & another  eKLR, it remains to consider whether the failure to join the Plaintiff in the former suit and the fresh Gazette Notice makes the current suit and cause of action different from the former one.
38.The judgment in the former suit was a judgment in rem. As correctly stated by the Defendant quoting the case of Abukar G. Mohammed v Independent Electoral and Boundaries Commission  eKLR, Justice Odunga held as follows: -
39.Although the Plaintiff was never a party in the former suit, it revolved around the ownership of land parcel Chembe/Kibabamshe/427. The court after complete adjudication, resolved its ownership fully and finally in favour of the Defendant herein, who was the Plaintiff in the former suit. Hon. Justice Angote issued various declaratory orders in the manner I have set hereabove in this ruling. The judgment is still in place – it has not been set aside, varied by a Superior Court or this Court, or compromised in any other manner. It binds the whole world including the Plaintiff since it is a judgment in rem. The Gazette Notice No. 6862 dated 17th July 2017, by the 1st Interested Party which relied on the earlier Gazette Notice NO. 15444 of 9th December 2011, revoking the Defendant’s title, ran afoul, or was oblivious of the orders issued by the Judge revoking the earlier Gazette Notice NO. 15444 of 9th December 2011. That Gazette Notice cannot be said to have occasioned a new cause of action since it placed reliance on an already revoked one aforesaid by the Judge in the former suit. It was a subject of discussion and determination in the former matter. The 1st Interested Party cannot be said to have sat as an Appellate Court to quash the orders of Hon. Justice Angote. in ELC NO. 178 of 2013 – Daniel Ricci Vs County Land Registrar Kilifi & The Hon. Attorney General. I can see from the parent file in the former suit, that it is at the execution stage with parties attempting negotiations as one way of settling. In my view, the proper approach that the Plaintiff ought to have taken is to move the court to be joined in the former suit and have the judgment varied, reviewed, or set aside, if there are new grounds to do so, or pursue an appeal than originate a separate and parallel cause of action involving the same subject matter and parties or parties litigating under them. There is a pending application, in the former suit dated 3rd October 2016, which sought to ventilate the issues raised here. It is part of the annexures in support of an injunction in this file. There are no reasons given why it has never been pursued in the former suit. I can see the next application I am to deal with simultaneously with the current Preliminary Objection, is to injunct the Defendant from the use of the same property when he already has a decree he is executing in the former suit. If I were to issue injunctive orders here, the same will run parallel to the decree in place which is due for execution. It will lead to mayhem and proliferation of suits and conflicting orders flying all over on the same issues leading to what the Court of Appeal has described in the Maina Kiai Case (supra) as: -
40.The upshot and my holding are that the Preliminary Objection dated 4th March 2022 is meritorious and is hereby upheld the current matter is hereby struck out in its entirety, with costs to the Defendant in any event.
41.Having found so, it follows that the application dated 25th March 2022 is rendered stillbirth. I will not consider it. It collapses in limine since the entire suit has been struck out.
DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY IN OPEN COURT ON THIS 9TH DAY OF NOVEMBER 2022.E. K. MAKORIJudgeIn the Presence of: -Mr. Momanyi for the DefendantMr. Ojwang for 2*nd and 3rd Interested PartiesMr. Muliro for the PlaintiffIn the Presence of: -1st Interested party