1.The application dated 8th March 2022 seeks for orders of review of the judgment delivered on 27th March 2015 and in the alternative a declaration that the order in Nyeri HCCC No. 253 of 1994 and HCCC No. 266 of 2008 as valid law and subsequently be reinstated. The applicants also seeks for orders of proprietary interests in the subject matter L.R Numbers 10025/2 and 2495 to be reaffirmed to them and that any titles issued to the respondent, 613 members pursuant to the said judgment be cancelled to facilitate re-issuance to the applicants members.
2.The respondent opposed the application and filed a Notice of Preliminary Objection dated 6th June 2022. The respondent urged the court to strike out the said application on the grounds that this court lacks jurisdiction to entertain it for the applicants appealed on the said judgment and are therefore precluded from lodging a review on the same judgment and decree. On 22nd April 2015, this court issued a well-reasoned judgment which was upheld by the Court of Appeal in Civil Appeal No. 66 of 2015 when it dismissed the appeal for lack of merit. The applicants then appealed to the Supreme Court in Civil Application No. 7 of 2019 where the court dismissed their appeal and thus the respondent contends that the applicants have exhausted their rights of appeal.
3.The respondent states that the instant application is an attempt by the applicants to re-litigate the issues which were subject of the proceedings before this court and the Court of Appeal and thus the issues raised are res judicata.
4.The respondent further argues that the application dated 8th March 2022 challenges the doctrine of functus officio and the principle of finality enabling the court to uphold that litigation must come to an end at a certain point regardless of what the parties think of the decision which has been handed down. Further, the respondent states that this court is functus officio and the applicants having challenged this court’s decision to the Court of Appeal and the Supreme Court, cannot approach this court for review or alteration of its previous decision.
5.The respondent avers that it is an abuse of the court process to subject him to multiple proceedings arising from the same facts and/or subject matter. As such, the respondent states that the application for review is a non-starter, incompetent, bad in law and an abuse of the court process.
6.Parties hereby agreed to dispose of the preliminary objection by way of written submissions.
The Plaintiff/Respondent’s Submissions
7.The respondent relies on the case of William Koross (legal personal representative of Elijah C.A Koross) vs Hezekiah Kiptoo Komen & 4 Others (2015) eKLR and submits that litigation must come to an end. The respondent submits that he instituted the instant suit against the applicants by way of a plaint alleging fraud. This court found in favour of the respondent and found that the orders obtained in Nyeri HCCC No. 80 of 1994 and Nyeri High Court Miscellaneous Civil Application No. 264 of 2008 were fraudulent. Being aggrieved by the decision of the court, the applicants appealed against the decision in the Court of Appeal vide Civil Appeal No. 66 of 2015 to which the court found the appeal to be devoid of merit and dismissed it. The applicants subsequently filed an appeal in the Supreme Court vide Civil Application No. 7 of 2019 and the court similarly dismissed it. The respondent argues that the applicants are precluded by the doctrine of estoppel as set out in the case of Mohammed Dado Hatu vs Dhadho Gaddae Godhana & 2 Others  eKLR, from litigating over the same issues which were the subject matter before this honourable court and the Court of Appeal.
8.The respondent relies on Order 2 Rule 9 of the Civil Procedure Rules and the cases of Mukisa Biscuits Manufacturing Company Limited vs West End Distributors Limited 1969 EA 696; Oraro vs Mbaja  eKLR and Wensley Barasa vs Immaculate Awino Abongo & Another (2020) eKLR and submits that the preliminary objection is premised on points of law being jurisdiction of the court and the doctrine of res judicata. The respondent further relies on Section 7 of the Civil Procedure Act and submits that the matters raised in the instant application are res judicata as the application invites the court to determine who between the two contending groups is the bona fide owner of the suit land. The respondent argues that the question of proprietary interests of the suit land was determined by this court when it declared that the orders obtained in HCCC No. 80 of 1983, 252 of 1994 and 264 of 2008 were null and void.
9.Further, the respondent contends that the Court of Appeal noted that the consent order that was recorded in HCCC No. 80 of 1993 provided for the sub division of the suit land and allocation of the same to various groups of people comprising the applicants. This was done presumably on the believe that the applicants herein were the bona fide proprietors of the suit land. Thus when the said consent and the subsequent orders obtained in 252 of 1994 and 264 of 2008 were declared null and void, the applicants’ non-existent proprietary interest in the suit land was determined with finality. Thus when the fraudulent consent orders were vacated, the respondent argues that his proprietary interest in the suit land was confirmed by the High Court in its sound judgment dated 27th March 2015 and re-affirmed by the Court of Appeal in its judgment dated 22nd November 2017.
10.Thus in light of the foregoing, the respondent contends that the applicants by inviting the court to re-affirm their proprietary interests in the suit land is attempting to have a second bite of the cherry. To support this contention, the respondent relies on the case of Suleiman Said Shabhal vs Independent Electoral & Boundaries Commission & 3 Others  eKLR.
11.The respondent argues that this court is functus officio and therefore does not have jurisdiction to entertain the instant application. The respondent relies on the cases of Accredo A.G & 3 Others vs Steffano Uccelli & Another (2019) eKLR; Raila Odinga & Others vs IEBC & Others (2013) eKLR and ICEA Lion General Insurance Co. Ltd vs Julius Nyaga Chomba  eKLR and submit that once the proceedings were fully concluded and the judgment made, the court is deemed to have expended all its authority.
12.The respondent further contends that although the court is clothed with power to review its decisions under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules this power must be exercised judiciously to prevent abuse of the judicial process. Thus, a party that desires to review a decision is required to make an application to the court that passed the decree or judgment without unreasonable delay. The respondent argues that the applicants have brought the instant application seven (7) years after judgment was rendered and after they exhausted their rights of appeal is the greatest sign of a party who just wants to keep trying till something gives. As such, the respondent urges the court not to entertain this hopeless venture by the applicants to have a second bite of the cherry through judicial craftsmanship. Thus the respondent submits that the court lacks jurisdiction because the application offends the doctrine of res judicata and estoppel. Further, the court having delivered its sound judgment on 22nd April 2015, the court became functus officio in respect to the dispute between the parties.
The Defendants/Applicants’ Submissions
13.The applicants submit that the issues raised in the instant application are not similar to those in the memorandum of Appeal in Civil Appeal No. 66 of 2015. Further the applicants contend that section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules did not envisage a situation where issues raised and determined in a judgment of the court are not the same issues prayed for in an application for review as those in the instant application. As such, the applicants contend that it cannot therefore be claimed that they have exhausted their rights of appeal. Further, the applicants contend that the issues raised in the instant application are not being presented for re-litigation as they were not the subject of the proceedings in HCCA No. 66 of 2015 and therefore the element of res judicata cannot come into play.
Whether the preliminary objection is sustainable.
14.The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:-…..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
15.Sir Charles Newbold P. stated:-A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.
16.Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013  eKLR held that:-A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
17.Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others,  eKLR the court held that:-Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
18.Evidently, a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. The respondent has raised the issue of jurisdiction and the doctrine of res judicata as points of law. The Court of Appeal in the case of Accredo A.G & 3 Others vs Steffano Uccelli & Another  eKLR relied on the case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors Ltd  EA 696 and held:-It follows therefore that the preliminary objections raised by the respondents on pure points of law, that is jurisdiction and the doctrine of res judicata and did not require additional evidence to substantiate the objection.
19.The doctrine of res judicata is set out in Section 7 of the Civil Procedure Act. The doctrine ousts the jurisdiction of a court to try any suit or issue which had been fully determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title. Section 7 of the Civil Procedure Act provides:-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
20.This principle was enunciated in the Court of Appeal in the case of The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others  eKLR where the court held:-For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
21.The Court went on to state on the role of the doctrine:-The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation an affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against the wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and for a, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.
22.The rationale for the doctrine of res judicata exists to protect public interest so that a party shall not endlessly be dragged into litigation over the same issue or subject matter that has otherwise been conclusively determined by a court of competent jurisdiction.
23.The suit began when the respondent herein purchased two parcels of land LR Nos 10025/2 and 2495 both of which were subsequently allocated to its members. Later in 1979, the members attempted to settle in the suit land but found other imposters already in occupation of the property and ejected them. The 5th applicant then filed a suit in Nyeri High Court being HCCC No. 80 of 1983 and on 2nd October 1992, a consent order was recorded before Tunoi J settling the membership and control of the company as well as providing for sub divisions of the farm and allocating it to various groups comprising of the 5th applicant herein.
24.As the sub-division was ongoing, the 5th applicant moved the court through a Judicial Review Misc. Application No. 253 of 1994 seeking to prohibit the Chief Land Registrar, the Land Registrar and the District Commissioner, Laikipia from processing or issuing title deeds. The court issued orders prohibiting the issuance of title deeds and an order of certiorari quashing the sub division of the farm that had been carried out and the respective titles issued. Pursuant to the judicial review orders, the respondent herein instituted the current suit and urged the court to set aside the orders obtained in HCCC No. 80 of 1983, HC Misc. No. 253 of 1994 and HC Misc. Civil Application No. 264 of 2008. The court delivered its judgment on 27th March 2015 in favour of the respondent and set aside the orders obtained by the applicants in Nyeri High Court Civil Case No. 80 of 1983 and High Court Misc. Civil Application No. 253 of 1994 as they were said to have been obtained through fraud. The court found that the judgment rendered on 27th March 2015, determined the other suits and orders obtained by the applicants in the prior suits and by virtue of the instant suit, all orders made against the respondent were set aside. The court thereafter directed that the land title deeds be issued to the plaintiff’s bona fide 613 members.
25.Being aggrieved with the decision of the court, the applicants lodged an appeal in the Court of Appeal Civil Appeal No. 66 of 2015 whereby the court found that the appeal was devoid of merit and dismissed it on 22nd November 2017. The applicants were aggrieved by the decision of the Court of Appeal and filed an application in the same court seeking for leave to appeal to the Supreme Court against the court’s judgment dated 22nd November 2017. The court dismissed the application and noted that none of the issues for determination amounted to cardinal issues of law and that there was no uncertainty to be resolved by the apex court.
26.The applicants thereafter filed an application in the Supreme Court seeking for orders of review or setting aside the decision of the court of Appeal dated 13th February 2019. In the alternative the applicants sought leave to lodge an appeal out of time against the court of appeal’s judgment dated 22nd November 2017. The court dismissed the application and held that the intended appeal did not meet the criteria to warrant a review of the Court of Appeal’s decision.
27.I have perused the record and made some observations that HCCC No. 248 of 1998 was filed in this court the respondent against five plaintiffs on their own behalf and on behalf of the 795 members of the respondent’s company. The plaint was amended on 21/07/2011. The suit challenged orders obtained by the applicants in Nyeri HCC No. 80 of 1983, Nyeri Misc. HC Application No. 253 of 1994 and Misc. HC Civil Application No. 264 of 2008 and sought that the said orders be set aside. The suit was heard and determined by Judge L. Waithaka of Land and Environment Court. The orders were set aside in the judgement of the court delivered on 27th March 2015 on grounds that the said orders had been obtained fraudulently.
28.The application dated 8th March 2022 seeks to set aside the orders of the court of 27/03/2015. It is not in dispute that an appeal Court of Appeal No. No. 66 of 2015 was lodged in the Court of Appeal against the said orders and the appeal was dismissed. An attempt to appeal against the Court of Appeal judgement was not successful. The applicants have exhausted their rights of appeal. Order 45 Rule 1 of the Civil Procedure Act allows review for an aggrieved party whereas in regard to “a decree or order from which an appeal is allowed, but from which no appeal has been preferred”. The appellant having already preferred an appeal which was determined by a court of competent jurisdiction cannot approach the High Court for review of the order or decree. Order 45 Rule 1 outlaws such an action by an aggrieved party. It is an affront of justice to ask this court to do what the law does not provide for.
29.Even assuming that the applicants had a right to apply for review, which I believe they don’t, this application has been brought after a prolonged delay of seven (7) years since the judgement was delivered. The delay of seven years has not been explained and is indeed inordinate and thus unacceptable in a system where expeditious disposal of cases has been emphasised now and then.
30.Furthermore, the High Court cases aforementioned were filed before the Environment and Land court was created under Article 162 of the Constitution and the Environment and Land Court Act enacted. The said law removed jurisdiction on land matters from the High court to the Environment and Land Court. At that juncture, all the land cases in the High Court were transferred to the Environment and Land Court for determination. The judges who heard and determined all the aforementioned cases namely L.Waithaka and A. Ombwayo were appointed under Article 162 of the Constitution to serve in the Environment and Land court. The issue of jurisdiction of this court then comes into play. Does this court have jurisdiction to review orders made by judges of the Environment and Land Court. The answer is in the negative. I am of the considered view that this court lacks the jurisdiction to review the orders made by the Environment and Land court.
31.The applicants having exhausted all the avenues of appeal have made mockery of justice in filing the current application in the High Court presenting the same issues that have been determined by the Court of Appeal. Even if this court had the jurisdiction to entertain the instant application, it lacks jurisdiction to review the orders of the Court of Appeal which validated the judgements of the Environment and Land Court.
32.Having considered all the foregoing issues, I reach a conclusion that the preliminary objection is merit. It is hereby upheld in its entirely.
33.The application dated 8th March 2022 is hereby declared incompetent and an abuse of the due process of the court.
34.The application is hereby struck out with costs to the respondents.
35.It is hereby so ordered.