1.By a Memorandum of Appeal dated the September 28, 2021 and filed on September 30, 2021, the Appellants appealed against the Ruling of the Senior Resident Magistrate Hon Martha Opanga made on the September 7, 2021 in Kangundo ELC Case No 47 of 2020 between Bernard Kimani Wainaina & 9 others Vs Jacinta Njeri Wainaina & 2 Others. The genesis of this Appeal is the Ruling by Hon Martha Opanga, Senior Resident Magistrate where she dismissed the Appellants’ suit as being res judicata by virtue of the Cooperative Tribunal decision.
2.The Appellants being dissatisfied with the whole of the said Ruling filed a Memorandum of Appeal dated the September 28, 2021 which contains the following grounds:1.The Learned Magistrate erred in law and fact in holding that the suit between the Plaintiffs and the Defendants was res judicata null and void.2.The Learned Magistrate erred in law and fact in holding that the issues in contention between the parties had been determined in the Cooperative Tribunal whereas there was glaring evidence to the contrary.It is proposed to ask the honourable court for orders that:-i.That the Ruling of the Honourable Magistrate dated September 7, 2021 be set aside and be substituted will an order that Kangundo PMCC ELC Case No 47 of 2020 do proceed to full hearing on merit.ii.That the costs of this Appeal be paid by the Respondents.iii.Any other relief this Honourable Court may deem fit and just to grant in the circumstances of the Appeal.
3.The Appeal was canvassed by way of written submissions.
Analysis and Determination
7.Upon consideration of the Memorandum of Appeal, Record of Appeal and rivalling submissions, the following are the issues for determination:
- Whether the Lower Court case is res judicata.
- Whether the Appeal is merited.
8.Before I proceed to make a determination of the issues herein, I wish to provide the background of the lower court case which has culminated in this Appeal. The Appellants are the adult children of the late Wainaina Mugecha who was member No 551 and owner of share No 555 an allottee of Plot No 3-034 measuring ten (10) acres. After the deceased demise, his shares were registered in the names of the two widows Jacinta N Wainaina and Jane Wambui Wainaina by Muka Mukuu Cooperative Society. Jacinta N Wainaina who is the 1st Respondent herein and the mother to the Appellants filed a complaint with the Cooperative Tribunal vide CTC Tribunal Case No 172 of 2005 against Muka Mukuu Farmers Cooperative Society Ltd which is the 3rd Respondent herein, and after deliberations, the Tribunal upheld the decision of the 3rd Respondent. The adult children of the 1st Respondent later filed a suit in the Machakos ELC that was transferred to Kangundo PMs Court which was dismissed for being res judicata and this forms the fulcrum of the Appeal herein.
9.The Appellants contend that the lower court suit is not res judicata as they were not parties to the Cooperative Tribunal proceedings. The 2nd and 3rd Respondents on the other hand insist that the learned Magistrate was right in her decision that the lower court suit was res judicata by virtue of the decision from the said Cooperative Tribunal.
10.From the Plaint, the Plaintiffs (Appellants) sought for the following orders:a.A declaration that the transfer of plot numbers 3 -034 at Muka Mukuu Farmers Cooperative Society LTD was unlawful.b.That the transfer be annulled/cancelled and the third Defendant be ordered to rectify the register and revert the property to the names of Wainaina Mugecha.c.That the property be subjected to the due process.
11.I wish to reproduce an excerpt from the impugned decision of the Cooperative Tribunal:
15.In relying on the legal provisions, I have cited above as well as associating myself with the decisions quoted while applying them to the circumstances at hand, I find that the ownership dispute relating to the share and Plot No 3-034 Muka Mukuu Cooperative Society Ltd in the name of the deceased was conclusively determined by the Cooperative Tribunal in case No 172 of 2005. Further, the 3rd Respondent as per the provisions of Section 39(1) of the Cooperative Societies Act which provides that:
16.proceeded to register the shares in the name of the two widows. I note the 1st Respondent never proceeded to appeal against the Cooperative Tribunal’s decision, hence it remains valid. I note the Appellants who are children of the 1st Respondent proceeded to clothe the dispute herein in fresh apparels but if the same is dissected, the fulcrum of the dispute is still substantially the same issue as in lower court suit, which is subject of this Appeal. It is worth noting that the Appellants only claim they were not party to the Tribunal proceedings but do not controvert the fact that the 3rd Respondent had the legal right to register the shares in the two widows names and that the Tribunal by dint of Section 76 of the Cooperative Societies Act had the jurisdiction to handle the dispute between the 1st Respondent and 3rd Respondent respectively.
17.In the circumstances, I find that the Appellants’ claim was indeed res judicata and by invoking the provisions of the Law of Succession Act, they are merely seeking to relitigate the dispute herein. Further, that the issue of the suit land was already heard and determined by the Tribunal.
18.I opine that the Appellants cannot purport to bring forth another suit on the issues that were previously raised by their mother who is the 1st Respondent herein and direct their wrath upon the 3rd Respondent. It is my observation that Litigation must come to an end.
19.I hence find that the Learned Magistrate hence did not err in law and fact in holding that the suit between the Plaintiffs and the Defendants was res judicata. I further find that the Learned Magistrate did not err in law and fact in holding that the issues in contention between the parties had been determined in the Cooperative Tribunal. To my mind the Appellants claim in the lower court was merely a cosmetic facelift to give the suit a different look.
20.It is in that regard that I find the Appeal unmerited and will proceed to dismiss it. I direct the Appellants to pay the costs of the Appeal to the 2nd and 3rd Respondents.