Paul Ndegwa Thiga has come to this court with plaint dated 6th March 2024 against Ngenda investments Rural Sacco Limited stating that this suit is a collateral challenge on a judgment and decree vesting the parcel of land known as Nakuru Municipality Block 10/63 in the defendant. The plaintiff asserts that the judgment and the decree were procured through substantive and procedural fraud and material misrepresentation of facts.
The plaintiff alleges that by an originating summons dated 18th October 2017, the defendant in this matter sought orders to the court that they had acquired title and ownership of the parcel of land known as Nakuru Municipality Block 10/63 by adverse possession. The originating summon was against Suraj Kunvar Pratopsinqh Parmar and Pravinsingh Pratapsinqh Parmar. At the time of filing of the originating summons, the respondents were resident in the United Kingdom.
The originating summons was serialized as case number ELC 432 of 2017 (Nqenda Investment Rural Sacco Ltd Surai_ Kunvar Pratapsingh Parmar and Pravinsingh Pratapsingh Parmar)
In the originating summons, the defendant herein purported that the parcel of land herein was the property of the late Pravinsinqh Pratapsinqh Parmar and that it had been in occupation for a period of over (12) years. In the affidavit in support of the originating summons, the defendant claimed that they had entered into a sale agreement for the purchase of the parcel land herein and they had paid the entire consideration but the vendor was not available to execute the transfer documents.
The defendant represented to the court that the said defendants, in the originating summons were resident out of the country and they served the summons through advertisement in the local dailies. There was no appearance by the defendants in originating summons number ELC 432 of 2017. The matter proceeded ex parte, the court passed judgment and issued an ex parte decree to the effect that the defendant\'s herein were owners of the land by adverse possession. As part of the execution of the decree in ELC 432 of 2017, deputy registrar of this court was ordered to execute all the transfer documents to effect the transfer of the land from Pravinsinqh Pratapsinah Parmar to the defendants.
The proceedings, judgment and the decree issued by the court in ELC 432 of 2017 (Nqenda Investments Rural Sacco Ltd v Surai Kunvar Pratapsinqh Parmar and Pravjnsinqh Pratapsinqh Parmar) were procured through fraud and misrepresentation of material facts. The particulars of fraud are given by the plaintiff. The gist of the cause of action is that the judgment was obtained through fraud.
The plaintiff prays for a declaration that the judgment and decree made by the Court in ELC 432 of 2017 (Ngenda Investments Rural Sacco Ltd Vrs Suraj Kunyar Pratapsingh Parmar and Pravinsingh Pratapsingh Parmar) declaring that the defendant herein (Ngenda Investments Rural Sacco Ltd) as the owner of the parcel of land known as Nakuru Municipality Block 10/63 was procured through fraud and misrepresentation of material facts.
A declaration that the judgment and decree in in ELC432 of2017 (Ngenda Investments Rural Sacco Ltd Vrs Suraj Kunvar Pratapsingh Parmar and Pravinsingh Pratapsingh Parmar) is ineffective against the plaintiff to the extent that it seeks to divest him of his interest in Nakuru Municipality Block 10/63 and vest the same in the defendants. Moreover, a declaration that the plaintiff\'s interest in Nakuru Municipality Block 10/63 can only be defeated, altered, cancelled or revoked in a substantive suit where the plaintiff is a party to the suit.
Lastly, a permanent injunction restraining the defendant, its directors, assigns or any person acting at their behest from interfering with the plaintiff\'s title and possession of the parcel of land known as Nakuru Municipality Block 10/63 and costs of the suit.
The defendant filed application dated 2nd May 2024 praying that the suit dated 6th March 2024 be struck out for being an abuse of the process of court being res-judicata.
The facts of the case are that the applicant approached the court by way of Originating Summons for adverse possession and was granted the prayers sought. In Nakuru ELC No.432 of 2017 where judgment was delivered on 17th December 2017. The respondent filed a case in the magistrate’s court seeking to be declared the owner of the land but the suit was withdrawn as the High Court had made orders that the applicant become the owner of the land. The respondent made an application to be enjoined in Nakuru ELC No.432 of 2017 but the same wad denied as the same had no merit. The applicant argues that the plaint violates the principle of res judicata. The supporting affidavit reiterates the grounds of the application.
Paul Ndegwa Thiga has filed a replying affidavit whose gist that the cause of action is different from the cause of action in Nakuru ELC 432 of 2017. The cause of action in this suit is that the judgment in Nakuru ELC 432 of 2017 was obtained through fraud.
The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that:
“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”
The Black’s law Dictionary 10th Edition defines “res judicata” as
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
I have considered the application and do find that the same is not merited because the plaintiff is challenging the same judgment that the applicant states was determined on merit. It is trite law that a judgment can be challenged by way of plaint if it can be proved that the judgment was obtained fraudulently.
The principle of res- judicata only applies if the parties in the new suit are the same parties in the old suit.
Moreover, if the issues in the new suit are same issues in the old suit, furthermore judgment must have determined the issue under controversy.
In this case I do find that the parties are not the same and that the issues in the suit are not the same. The applicant has not satisfied the conditions to be met for the doctrine of res judicata to apply. Moreover, that the suit is not an abuse of the court process as the cause of action is sound in law. The application is dismissed with costs to the respondent.
Ruling dated and delivered electronically at Nakuru this 9th day of October 2024.
The plaintiff alleges that by an originating summons dated 18th October 2017, the defendant in this matter sought orders to the court that they had acquired title and ownership of the parcel of land known as Nakuru Municipality Block 10/63 by adverse possession. The originating summon was against Suraj Kunvar Pratopsinqh Parmar and Pravinsingh Pratapsinqh Parmar. At the time of filing of the originating summons, the respondents were resident in the United Kingdom.
The originating summons was serialized as case number ELC 432 of 2017 (Nqenda Investment Rural Sacco Ltd Surai_ Kunvar Pratapsingh Parmar and Pravinsingh Pratapsingh Parmar)
In the originating summons, the defendant herein purported that the parcel of land herein was the property of the late Pravinsinqh Pratapsinqh Parmar and that it had been in occupation for a period of over (12) years. In the affidavit in support of the originating summons, the defendant claimed that they had entered into a sale agreement for the purchase of the parcel land herein and they had paid the entire consideration but the vendor was not available to execute the transfer documents.
The defendant represented to the court that the said defendants, in the originating summons were resident out of the country and they served the summons through advertisement in the local dailies. There was no appearance by the defendants in originating summons number ELC 432 of 2017. The matter proceeded ex parte, the court passed judgment and issued an ex parte decree to the effect that the defendant\'s herein were owners of the land by adverse possession. As part of the execution of the decree in ELC 432 of 2017, deputy registrar of this court was ordered to execute all the transfer documents to effect the transfer of the land from Pravinsinqh Pratapsinah Parmar to the defendants.
The proceedings, judgment and the decree issued by the court in ELC 432 of 2017 (Nqenda Investments Rural Sacco Ltd v Surai Kunvar Pratapsinqh Parmar and Pravjnsinqh Pratapsinqh Parmar) were procured through fraud and misrepresentation of material facts. The particulars of fraud are given by the plaintiff. The gist of the cause of action is that the judgment was obtained through fraud.
The plaintiff prays for a declaration that the judgment and decree made by the Court in ELC 432 of 2017 (Ngenda Investments Rural Sacco Ltd Vrs Suraj Kunyar Pratapsingh Parmar and Pravinsingh Pratapsingh Parmar) declaring that the defendant herein (Ngenda Investments Rural Sacco Ltd) as the owner of the parcel of land known as Nakuru Municipality Block 10/63 was procured through fraud and misrepresentation of material facts.
A declaration that the judgment and decree in in ELC432 of2017 (Ngenda Investments Rural Sacco Ltd Vrs Suraj Kunvar Pratapsingh Parmar and Pravinsingh Pratapsingh Parmar) is ineffective against the plaintiff to the extent that it seeks to divest him of his interest in Nakuru Municipality Block 10/63 and vest the same in the defendants. Moreover, a declaration that the plaintiff\'s interest in Nakuru Municipality Block 10/63 can only be defeated, altered, cancelled or revoked in a substantive suit where the plaintiff is a party to the suit.
Lastly, a permanent injunction restraining the defendant, its directors, assigns or any person acting at their behest from interfering with the plaintiff\'s title and possession of the parcel of land known as Nakuru Municipality Block 10/63 and costs of the suit.
The defendant filed application dated 2nd May 2024 praying that the suit dated 6th March 2024 be struck out for being an abuse of the process of court being res-judicata.
The facts of the case are that the applicant approached the court by way of Originating Summons for adverse possession and was granted the prayers sought. In Nakuru ELC No.432 of 2017 where judgment was delivered on 17th December 2017. The respondent filed a case in the magistrate’s court seeking to be declared the owner of the land but the suit was withdrawn as the High Court had made orders that the applicant become the owner of the land. The respondent made an application to be enjoined in Nakuru ELC No.432 of 2017 but the same wad denied as the same had no merit. The applicant argues that the plaint violates the principle of res judicata. The supporting affidavit reiterates the grounds of the application.
Paul Ndegwa Thiga has filed a replying affidavit whose gist that the cause of action is different from the cause of action in Nakuru ELC 432 of 2017. The cause of action in this suit is that the judgment in Nakuru ELC 432 of 2017 was obtained through fraud.
The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that:
“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”
The Black’s law Dictionary 10th Edition defines “res judicata” as
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
I have considered the application and do find that the same is not merited because the plaintiff is challenging the same judgment that the applicant states was determined on merit. It is trite law that a judgment can be challenged by way of plaint if it can be proved that the judgment was obtained fraudulently.
The principle of res- judicata only applies if the parties in the new suit are the same parties in the old suit.
Moreover, if the issues in the new suit are same issues in the old suit, furthermore judgment must have determined the issue under controversy.
In this case I do find that the parties are not the same and that the issues in the suit are not the same. The applicant has not satisfied the conditions to be met for the doctrine of res judicata to apply. Moreover, that the suit is not an abuse of the court process as the cause of action is sound in law. The application is dismissed with costs to the respondent.
Ruling dated and delivered electronically at Nakuru this 9th day of October 2024.