Njenga v Cabinet Secretary, Ministry of Land, Housing & Urban Development & 4 others (Civil Appeal 65 of 2017) [2024] KECA 1849 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KECA 1849 (KLR)
Republic of Kenya
Civil Appeal 65 of 2017
MA Warsame, SG Kairu & FA Ochieng, JJA
December 20, 2024
Between
Hannah Wangui Njenga
Appellant
and
Cabinet Secretary, Ministry Of Land, Housing & Urban Development
1st Respondent
Cabinet Secretary, Ministry Of Interior & Co-Ordination Of National Government
2nd Respondent
National Land Commission
3rd Respondent
.Director Of Survey
4th Respondent
The Hon Attorney General
5th Respondent
(An appeal from the Judgment and Order of the Employment and Land Court of Kenya at Nakuru (Munyao, J.) dated 28th June, 2017 in ELC Petition No. 26 of 2016)
Judgment
1.In this appeal, the appellant Hannah Wangui Njenga, has challenged the judgment of the Environment and Land Court (ELC) (Munyao Sila, J) delivered on 28th June 2017 dismissing her constitutional petition against the respondents being Nakuru Petition No. 26 of 2016, with costs.
2.In dismissing the petition, the learned Judge of the ELC after referring to the appellant’s previous suit in Nakuru High Court Civil Case No. 85 of 2010 stated as follows:
3.The appellant through learned counsel Mr. Kipkoech, B. N. submitted in support of the appeal that the Judge erred in arriving at the decision that the petition was res judicata without any evidence having been tendered before him and failed to appreciate that the issues raised in the petition were completely different from the matters in Nakuru High Court Civil Case No. 85 of 2010.
4.It was submitted that for the doctrine of res judicata to apply, the matters in issue must be similar and the same should have been determined on merits. The decisions in Njue Ngai vs. Ephantus Njiru Ngai & another [2016] eKLR; and Independent Electoral & Boundaries Commission vs. Maina Kiai & 5 others [2017] eKLR and Henderson vs. Henderson (1843-60) ALL E.R 378 were cited in support. Moreover, it was urged, the parties in the High Court suit and in the Petition were not the same.
5.It was submitted that the respondents in this case illegally and unlawfully entered and detained the appellant’s parcel of land without due process of compulsory acquisition under the Land Act and that the prayers in the petition should therefore be granted.
6.Although the respondents were duly served with notice of hearing, there was no appearance during the hearing of the appeal. However, the Attorney General filed written submissions on behalf of 1st, 2nd, 4th and 5th respondents dated 7th June 2024 in which it was submitted that the appeal is wholly without merit; that the appellant’s petition was caught up and barred under by Section 7 of the Civil Procedure Act; that as pronounced by the Supreme Court of Kenya in Dina Management Limited vs. County Government of Mombasa & 5 others [2023] KESC 30 (KLR), there must be finality to litigation.
7.We have considered the appeal in keeping with our mandate to re-appraise the evidence with a view to drawing our own conclusions. The single question for determination is whether the learned Judge erred in dismissing the appellant’s petition based on the doctrine of res judicata.
8.The record of appeal shows that in 2010, the appellant (Hannah Wangui Njenga) instituted Nakuru High Court Civil Case No. 85 of 2010 naming the District Land Registrar, Commissioner of Lands, Director of Survey and the Attorney General as the 1st to 4th defendants respectively. Although the pleadings in that suit do not form part of the record before us, the reliefs that the appellant sought in that suit and the basis on which she sought those reliefs are clearly set out in the judgment of Emukule, J. delivered in that suit on 15th March 2013. The appellant’s case in that suit as discernible from that judgment was that she is the registered proprietor of the property known as Title Number Nakuru/Cedar Lodge/41 within which was located a borehole; that a dispute arose over the use of that borehole with the area Assistant Chief and elders insisting that the borehole was for the common use and not for the exclusive use of the appellant.
9.The appellant sought orders in that suit for declarations that: the creation of Nakuru/Cedar Lodge/116 within her property Cedar Lodge/41 was illegal, null and void; that her parcel of land Cedar Lodge/41(4 acres) comprise and is inclusive of the area of the borehole (now known as Nakuru Lodge/116). She also prayed for an order directing the Director of Survey to amend Sheet No. 1 Cedar Lodge Settlement Scheme to cancel or remove parcel No. 116; an order directing the District Land Registrar and Commissioner of Lands to rectify the register to cancel parcel No. 116; and an order restraining all the defendants in that suit from interfering with her property Nakuru/Cedar Lodge/41.
10.The learned Judge noted in that judgment that the borehole is surrounded by the appellant’s land and that there was no evidence that she had been denied access to it or the use of its waters. Emukule, J stated that while the appellant was “correct in seeking the orders in the plaint”:
11.Instead, the learned Judge issued:
12.The appellant was dissatisfied and filed an application dated 26th March 2013 seeking review of that judgment. The fate of that application is not clear from the record.
13.The matter did not end there. The appellant then filed constitutional petition dated 13th May 2016, being Petition No. 26 of 2016, which culminated in the judgment the subject of this appeal. In the petition, the appellant named Cabinet Secretary, Ministry of Land, Housing and Urban Development, Cabinet Secretary, Ministry of Interior & Coordination of National Government, National Land Commission, Director of Survey and the Attorney General as the 1st to 5th respondents respectively.
14.In the petition, she sought a declaration that the actions of the respondents of interfering with the parcel of land known as Nakuru/cedar lodge/41 were illegal, discriminatory and null and void for violating her right to property; An order of mandamus compelling the State “to provide security against reckless individuals within the Government”; A declaration that she is the legal owner of the whole of said property Nakuru/cedar lodge/41 measuring 4 acres; and a declaration that the Government of Kenya had “abdicated its role and has become an escapist”.
15.She pleaded that the respondents had violated her constitutional rights under various articles of the Constitution. The factual background pleaded in the petition was that she is the registered owner of all that parcel of land known and fully described as Nakuru/Cedar Lodge/41, measuring 4 acres; that the said land was a subdivision of a parcel of land registered and owned as part of the larger Cedar Lodge Settlement Scheme; that prior to subdivision the settlement scheme had 3 boreholes, which subsequently became private properties of those who were allocated the portions which they were in. In the petition, she referred to the judgment delivered on 15th March 2013 in Nakuru High Court Civil Case No. 85 of 2010 thus:
16.The Attorney General on behalf of the respondent filed grounds of opposition to the petition asserting, among other things, that it was an abuse of the process of the court. Thereafter the learned Judge of the ELC issued directions in the petition directing the parties to file written submissions to include specific submissions on whether the petition is res judicata.
17.Having considered the submissions, the learned Judge, as already noted, was not in any doubt that the appellant was seeking to re-litigate a matter which had already been determined in judgment delivered on 15th March 2013 in Nakuru High Court Civil Case No. 85 of 2010. Did the learned Judge err in so holding?
18.The doctrine of res judicata is captured in Section 7 of the Civil Procedure Act which provides:
19.As stated by the Supreme Court of Kenya in the case of John Florence Maritime Services Limited & Another vs. Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR), the doctrine of res judicata is a pillar upon which our judicial system is founded and is based on the principle of finality which is a matter of public policy and prevents a multiplicity of suits which would ordinarily clog the courts and ensures that litigation comes to an end.
20.In the same case, the Supreme Court encapsulated the elements that should be demonstrated for the doctrine of res judicata to be invoked in a civil matter, namely, that there was a former judgment or order which was final; that the judgment or order was on merit; that the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and that there had to be identical parties, subject matter and cause of action in both actions. The Supreme Court re-affirmed the position it had expressed earlier in the case of Kenya Commercial Bank Limited vs. Muiri Coffee Estate Limited & Another, Motion No. 42 of 2014 [2016] eKLR that the doctrine of res judicata applies in respect of matters of all categories, including issues of constitutional rights.
21.In the often cited English case of Henderson vs. Henderson (1843) (1843) 67 ER 313, Wigram, V-C expounded on the doctrine of res judicata as follows:
22.With those principles in mind, the subject matter of the appellant’s suit in Nakuru High Court Civil Case No. 85 of 2010 as already noted was her property Title Number Nakuru/Cedar Lodge/41 in respect of which she sought, among other reliefs, a declaration that it “comprises and is inclusive of the area of the borehole known as Nakuru/Cedar Lodge/116”. It is the same subject matter in her petition giving rise to the present appeal.
23.Furthermore, and as demonstrated above, a final judgment on merits was rendered by the High Court (Emukule, J) on 15th March 2013 in Nakuru High Court Civil Case No. 85 of 2010 wherein the court issued an order to be noted on the register of Nakuru/Cedar Lodge/116 prohibiting dealings with it without first giving the appellant the option to consolidate it with her title over Nakuru/Cedar Lodge/41. There is no suggestion that the High Court was incompetent or lacked jurisdiction in making those orders.
24.As for the parties, all the defendants in Nakuru High Court Civil Case No. 85 of 2010, namely, the District Land Registrar, Commissioner of Lands, Director of Survey and the Attorney General and all the respondents in the subsequent petition, apart from National Land Commission, are state organs that were represented by the Attorney General. Although all the parties are not common in both actions, they are clearly “litigating under the same title” (see John Florence Maritime Services Limited & Another vs. Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR).
25.As the learned Judge of the ELC stated in his judgment, the totality of the appellant’s prayers in her petition “are encapsulated by the prayer for a declaration that the [appellant] is the legal owner of the whole of the parcel of land known as Nakuru/Cedar Lodge/41 measuring 4 acres”. The Judge went on to say that there is really no difference between the prayers in the petition and the prayers she sought in High Court Civil Case No. 85 of 2010 before stating:
26.We respectfully agree. In the result, we are fully in agreement with the holding by the learned Judge that:
27.Therefore, the appeal fails and is hereby dismissed with costs to the 1st, 2nd, 4th and 5th respondents.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024.M. WARSAME................................. JUDGE OF APPEALS. GATEMBU KAIRU, FCIArb...................................JUDGE OF APPEALF. OCHIENG...................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR