[2019] KEHC 9868 (KLR)
The High Court found that both parties admitted the existence of Busia SRMC P&A No.126 of 1989 in the Busia Chief Magistrate’s Court, which is the court properly seized of the succession matter. Any application regarding that cause must be made in the lower court, not by way of a miscellaneous application in the...
Source-derived case information.
- Citation
- [2019] KEHC 9868 (KLR)
- Parties
- Applicant: Celine Mugeni Bwire; Applicant: Oscar Noel Bwire (suing on their behalf and as a legal representative of Lucia Akumu Bwire & Sebastian Paul Bwire Kanoti); Respondent: Emmanuel Dennis Bwire
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 13 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection allowed; application struck out with costs
- Legal Topics
- Preliminary Objection, Res Judicata, Jurisdiction, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Celine Mugeni Bwire
Applicant
Oscar Noel Bwire (suing on their behalf and as a legal representative of Lucia Akumu Bwire & Sebastian Paul Bwire Kanoti)
Applicant
Emmanuel Dennis Bwire
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application is fatally defective as the prayers sought cannot be made in a miscellaneous application.
- 2 Whether the suit is res judicata due to prior determination in Busia SRMC P&A No.126 of 1989.
- 3 Whether the High Court has jurisdiction to entertain the application or if it should be filed in the lower court.
Ratio Decidendi
The High Court found that both parties admitted the existence of Busia SRMC P&A No.126 of 1989 in the Busia Chief Magistrate’s Court, which is the court properly seized of the succession matter. Any application regarding that cause must be made in the lower court, not by way of a miscellaneous application in the High Court. The court further found that the application was misconceived and that the preliminary objection was merited. The High Court therefore allowed the preliminary objection with costs, striking out the miscellaneous application and directing the applicants to file their application in the appropriate lower court.
Court Disposition
preliminary objection allowed; application struck out with costs
Orders
- The preliminary objection is allowed with costs.
- The entire miscellaneous application is struck out.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
MISCELLANEOUS CIVIL APPLICATION NO. 13 OF 2008
1. CELINE MUGENI BWIRE
2. OSCAR NOEL BWIRE (suing on their behalf and as a legal representative
of Lucia Akumu Bwire & Sebastian Paul Bwire Kanoti).............APPLICANTS
VERSUS
EMMANUEL DENNIS BWIRE...............................................RESPONDENT
RULING
1. The respondent/applicant raised a preliminary objection dated 26th April 2016 and which was subsequently amended on 30th November 2018 based on the following grounds:
a) That the application is bad in law, sham and incompetent and fatally defective as the prayers sought cannot be made in a miscellaneous application.
b) That the entire suit is defective in law and in substance since it is res judicata as the subject matter herein had been heard and determined in Busia SRMC P&A No.126 of 1989.
c) That the entire suit and the application dated 26th April 2016 is incompetent and ought to be struck out with costs.
2. The preliminary objection was opposed on grounds that the issue of res judicata cannot be adequately canvassed at this juncture.
3. Both parties admitted that there is a Probate and Administration Cause No. 126 of 1989 in the Busia Chief Magistrate’s court. Any application in respect of that succession cause ought to be made in the Lower Court. That is the court that is seized of the matter in dispute.
4. I therefore make a finding that the entire Miscellaneous application is misconceived. The P.O is allowed with costs. The applicants ought to file their application in Busia SRMC P&A No.126 of 1989.
DELIVEREDandSIGNEDatBUSIAthis26th dayof February, 2019
KIARIE WAWERU KIARIE
JUDGE.