Submissions of the parties
8.The plaintiff filed submissions on 12/9/2022 while the defendants filed theirs on 20/9/2022.
9.The plaintiff identified two issues for determination: one, whether the 1st defendant failed to exercise due care and responsibility with respect to the entries and handling of the land register relating to the suit properties, and two, whether the plaintiff is entitled to compensation.
10.The defendants on the other hand identified four issues as follows: whether the present suit is res judicata; whether the plaintiff is entitled to compensation by the Land Registrar for the loss occasioned by rectification of the register; whether the Land Registrar failed to exercise due care and responsibility with respect to the entries and handling of the land register relating to the subject properties and, lastly, who should bear the costs of the present suit.
11.I will start by addressing the first issue raised by the defendants in their submissions because in this court’s view it is a preliminary issue albeit raised at a late stage, and if this court finds indeed that the present suit is res judicata then it must down its tools.
12.The defendants’ submission is that ELC No 85 Of 2012 (Formerly HCCC No 268 Of 2009) Josphat Muthui Mwangi Vs Chief Land Registrar, Szaredo Investments Ltd and Margaret Nyambura Kamau decided the issue of ownership of the suit property and they cite the provisions of Section 7 of the Civil Procedure Act.
13.The defendants cited the case of Uhuru Highway Development Ltd Vs Central Bank of Kenya & 2 Others 1996 eKLR for the conditions necessary to enable one rely on the doctrine of res judicata. They submit that in order to decide whether the present case is res judicata is applicable in the present case the court should examine at the decision claimed to have settled the issues and the pleadings in that case and ascertain what issues were determined, whether they are the same as those in the instant case, and whether the parties are the same or litigating under the same title and finally that the decision in the previous case was made by a court of competent jurisdiction. The defendant cited the case of Paul Ndungu Nyokabi & 31 Others Vs John Nzioka Nzuki & 4 Others 2020 eKLR.
14.The preliminary issue has been brought to the attention of the court by way of submissions but nevertheless the court cannot afford to ignore it as it is a legal issue, and it must therefore address it, as legal issues can be raised at any point in proceedings before judgment.
15.The primary purpose of the doctrine of res judicata is to avert a multiplicity of suits regarding the same subject matter.
16.In the case of Lotta vs. Tanaki  2 EA 556 it was held as follows:
17.In the case of Gurbachan Singh Kalsi vs. Yowani Ekori Civil Appeal No. 62 of 1958 the former Court stated as follows:
18.I have perused the judgment delivered by this court in the former case. There is no dispute that in ELC No 85 Of 2012 (Formerly HCCC No 268 Of 2009) Josphat Muthui Mwangi Vs Chief Land Registrar, Szaredo Investments Ltd and Margaret Nyambura Kamau the plaintiff herein was then a defendant, alongside the Chief Land Registrar and Margaret Nyambura Kamau, the latter being the person who purportedly sold the plaintiff the suit land while the plaintiff in that case was the genuine owner of the land and that in that case he secured orders restoring title back to his name.
19.The same set of facts relied on by the plaintiff in the present case were relied on in that case as its defence, chief among them being that the plaintiff herein was a purchaser for value without notice; the evidence adduced by the plaintiff was the same. The same facts that were raised by the defendants in the previous suit are the facts that have been pleaded in defence in the present suit and the evidence adduced for the defendant is similar in both cases.
20.Section 7 of the Civil Procedure Act is the embodiment of the doctrine of res judicata in our jurisdiction. It provides as follows:
21.It is therefore common ground in the present suit that there was a former suit, to wit ELC No 85 Of 2012 (Formerly HCCC No 268 Of 2009) Josphat Muthui Mwangi Vs Chief Land Registrar, Szaredo Investments Ltd and Margaret Nyambura Kamau before a competent court which dealt with it to conclusion. It is common ground that the same parties in the present suit were involved in the former suit. The only issues now arising are as follows:a.Whether matters in that suit which are the subject matter of the present suit were alleged by one party and either denied or admitted, expressly or impliedly, by the other;b.Whether there were matters which might and ought to have been made ground of defence or attack in such former suit and which should be deemed to have been a matter directly and substantially in issue in such suit which arise in the present suit.
22.Are there matters in the former suit that were alleged by one party and denied by the other that form part of and are directly and substantial in issue in the present suit?
23.The 2nd defendant, Szaredo, in the former suit is the plaintiff in the present suit; it is clear that its pleadings and evidence in the former suit, just as in the present one, dwelt on the claim that it was a bona fide purchaser for value without notice of any defect in title held by the seller and that its titles are indefeasible, and that the plaintiff in that case ought to have sued the fake seller for damages. In the submissions on behalf of the Szaredo, it was stated that due diligence had been undertaken on its behalf which revealed no encumbrance on the titles. Section 26 of The Land Registration Act was relied on, with the further submission being made that Josphat should have been compensated by the government which is the custodian of land records, with the Ministry of Lands taking up responsibility. However, it was submitted by the State Counsel on behalf of the government that the Land Registrar was not a party to any fraud and that no officer from the lands office was convicted of any criminal offence. The State Counsel further blamed the plaintiff herein stating that it never conducted due diligence, and that due diligence should not stop at conducting a search, but also included carrying out a background check on the seller, perusing the green cards, enquiring from neighbours and establishing the history of the land. The State Counsel submitted that the land was transferred to the 2nd defendant by way of fraud and that the only viable remedy was to reinstate the plaintiff in that suit as the registered owner. In the judgment in the former suit, the trial court on its part in its decision blamed the plaintiff in the present matter for a certain casualness in the manner in which it approached the transaction.
24.It has already been made explicit in Section 7 of the Civil Procedure Act that the rule is that a matter that should have but was not made a point of either attack or defence by any party against another in the former case cannot be raised as a point of attack or defence in a subsequent suit.
25.The plaintiff and its chief adversary in the present suit, that is the Chief Land Registrar were parties in the former suit. Since both suits are premised on the same set of facts and the law, the plaintiff herein had the opportunity to lodge a counterclaim or file a notice of claim against a co-defendant in the former suit to rely on those same facts to seek the same reliefs he seeks against the Chief Land Registrar in the former suit. The dispute between it and the Chief Land Registrar would have been adjudicated in that very suit.
26.I will now interrogate in detain the claim, the respective defences of the parties and the judgment in the former suit with greater depth in the inquiry as to whether the present suit is res judicata.
27.Josphat Muthui Mwangi had sought the following orders in the former suit:(a)A declaration that he is the lawful owner of the suit properties.(b)An order directing the 1st defendant to restore and reinstate the plaintiff as the registered owner or proprietor of the suit properties.(c)Eviction order against the 2nd defendant.(d)A permanent injunction preventing the defendants or any other person from interfering with the plaintiff's titles to the said parcels of land or otherwise from quiet enjoyment and possession of the suit properties.(e)A consequent permanent injunction against the 2nd defendant or any other person from trespassing and or remaining on the plaintiff's parcels of land or otherwise from quiet enjoyment and possession of the suit properties.(f)General damages against the 2nd defendant for trespass.(g)Order of account and or mesne profits in respect of the benefits drawn by the 2nd defendant from the suit property for the period of its occupancy until surrender thereof to the plaintiff.(h)in the alternative, an order directing the 1st defendant to indemnify or otherwise to facilitate the indemnification of the plaintiff in respect of the loss of the suit properties at the current value.(i)Costs and interest at court rates.(j)Any other relief that this Honourable Court may deem fit to grant.
28.When Josphat claimed in the former suit that he is the rightful owner of the suit land, he was in effect putting Szaredo to its defence to prove the legality of the titles he holds over the suit lands. He was also putting the Chief Land Registrar to his defence to prove that the successive registrations of Margaret and Szaredo as proprietors were supported by law and procedure; he also put both Szaredo Ltd, Margaret Nyambura Kamau and the Chief Land Registrar to task to establish that the registrations of Margaret and Szaredo were fraudulent or not.
29.It would appear from the judgment of the court in the former suit that Szaredo was quite confident that its title documents were completely in order. In analyzing Szaredo’s defence the court stated as follows:
30.The trial court also analyzed the defence of the Chief Land Registrar in the former suit as follows:
31.In the light of the defence of Szaredo Ltd and the defence of the Chief Land Registrar as analyzed by the trial court in the passages above, the main questions that arise are as follows:a.whether, though it was not done then, it was possible for Szaredo to lodge a counterclaim against its two co-defendants during the pendency of the former suit;b.why no counterclaim was never lodged; andc.whether it was open to Szaredo Ltd to lodge the present suit if it failed to utilize the chance to plead in the former suit in the manner indicated herein before.
32.The answer to the first and the third questions will determine if the present suit is res judicata. The answer to the third question essentially involves the interpretation that this court will give to the provisions of Section 7 of the Civil Procedure Act earlier set out in this judgment. The second question can only be answered by Szaredo Ltd or its counsel. All I will stated is that the courts have been aware that there are many reasons why a claim or part of it may be omitted and the case of Gurbachan Singh Kalsi (supra) deems some of these to be negligence, inadvertence, or even accident, but it is clear from that decision that these do not constitute good grounds that would allow the court to entertain a second suit on the same set of facts.
33.The first question must be answered in the positive, for there was no excuse not to file a counterclaim or notice of claim against co-defendant in that suit if upon perusal of pleadings it was crystal clear to Szaredo Ltd that:
- official searches revealed that the properties were registered in the name of the 3rd defendant who had also been issued with title deeds; that consent to transfer the properties from the 3rd to 2nd defendant was granted by the Naivasha Land Control Board;
- that the 2nd defendant paid stamp duty and all relevant fees and became registered as legal owner of the properties;
- that the 2nd defendant took possession and has been in occupation since;
- that the 2nd defendant is a purchaser for value;
- that as registered proprietor her rights over the property are indefeasible;
- and that the plaintiff's claim lies against the 3rd defendant for damages.
- The Chief Land Registrar’s position was that the registrations were done in good faith, legally and with no irregularities.
34.The Chief Land Registrar stated in the former case, just as in the present case, that the transfers of suit properties to Margaret and Szaredo were carried out in good faith without irregularities and in accordance with the law and that the impugned transfers were registered legally, procedurally and pursuant to and in exercise of the 2nd defendant’s statutory duties. He also stated that the 1st defendant was not under any obligation to ascertain whether the documents presented at the Land Registry for registration were forged. I perceive the Chief Land Registrar’s defence in both suits to be implicitly denying Josphat’s entire claim and also any involvement in fraud or negligence on the part of his land registry officials.
35.Naturally, in the former suit the Chief Land Registrar’s defence ought to have alarmed Szaredo who should therefore have gone flat out to prove in those proceedings that the land registry officers were either party to the alleged fraud or were negligent and that his loss is as a result of that negligence. However, in the judgment, though the court found that Szaredo was to blame for some recklessness in the transaction the trial court found that the scam was too sophisticated to be easily detected and it was initially unable to state with certainty that the officials at the land registry had acted in collusion with the fraudsters (see paragraphs 23 and 25 of the judgment.) Subsequently, the trial court observed that:It must be recalled that the role of the lands office staff is an issue that recurred in the present suit and it is common ground that none of them was convicted of any offence in connection with the forgery.
36.Szaredo Ltd must also be deemed to have been in a position to know and present to the court the full extent of loss and damage that it stood to incur in the event that its title deeds to the suit land were nullified. Indeed, it was evident throughout the former suit that Szaredo was aware of possibility of compensation under the law, for the trial court ended the summary of the evidence of Szaredo’s director as follows:
37.In his submissions, Szaredo’s counsel also emphasized on the loss to be incurred and, most importantly of all, hinted at Josphat’s possible claim for compensation against the government. The court’s summary of his submissions went as follows:
38.Why Szaredo never focused on the issue of compensation payable by the government to itself in that case cannot be clearly understood.
39.In the foregoing circumstances Szaredo Ltd was perfectly at liberty to file a counterclaim against its co-defendants in the former suit or file a notice of claim or of indemnity against its co-defendant, the Chief Land Registrar seeking compensation for loss that would be occasioned by the possible cancellation of its titles and rectification of the register as well as damages and legal costs; instead it came to lodge a fresh suit much later, being the present suit, after the former suit was concluded.
40.I have noted that the court in the former suit addressed the issue of compensation of Szaredo thus:
41.And that is the passage in the judgment in the former suit from which Szaredo apparently took the cue and filed the present suit. Order 1 Rule 24 provides as follows:
42.It is clear that upon a purposive reading of Section 7 of the Civil Procedure Rules together with Order 1 Rule 24, the inescapable interpretation with regard to res judicata is that there was nothing that prevented Szaredo, who already knew of the effect of Section 26(1) (b) of the Land Registration Act with regard to a title acquired illegally, unprocedurally or through a corrupt scheme, from lodging a claim against the Chief Land Registrar within that former suit.
43.In the final analysis, it is this court’s view therefore that there were matters in the former suit ELC No 85 Of 2012 (Formerly HCCC No 268 Of 2009) Josphat Muthui Mwangi Vs Chief Land Registrar, Szaredo Investments Ltd and Margaret Nyambura Kamau which are subject matter of the present suit that were alleged by Szaredo and either denied or admitted, expressly or impliedly, by the Chief Land Registrar; there are also matters which might and ought to have been made ground of defence or attack between Szaredo and the Chief Land Registrar in that former suit. This court deems those matters, which arise in the present suit, to have been matters directly and substantially in issue in that former suit which are incapable of being subjected to a second opinion by this court in the present or in any other suit between Szaredo and the Chief Land Registrar. This revelation ineluctably leads to the conclusion that the present suit is res judicata ELC No 85 Of 2012 (Formerly HCCC No 268 Of 2009) Josphat Muthui Mwangi Vs Chief Land Registrar, Szaredo Investments Ltd and Margaret Nyambura Kamau.
44.Consequently, I find that this court lacks jurisdiction to determine this suit on its merits in respect of the remaining issues and it must peremptorily down its tools. Consequently, I strike out the plaint dated 11/5/2016 with costs to the defendants.
45It is so ordered.