[2015] KEHC 7484 (KLR)
The court found that both Civil Appeal No. 106 of 2014 and Civil Appeal No. 40 of 2014 arise from the same judgment in Kiambu Principal Magistrate’s Court Succession Cause No. 246 of 2004, involve members of the same family, and raise similar issues regarding the jurisdiction of the magistrate’s court and the...
Source-derived case information.
- Citation
- [2015] KEHC 7484 (KLR)
- Parties
- Applicant: Damaris Nyambura Ngugi; Respondent: Francis Mutua Ngugi; Respondent: Joyce Nyokabi Ngugi; Respondent: Milkah Wanjiru Ngugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 106 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application for Consolidation of Appeals
- Outcome
- application for consolidation allowed
- Legal Topics
- Succession Disputes, Consolidation of Appeals, Jurisdiction of Magistrates Courts, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Nyambura Ngugi
Applicant
Francis Mutua Ngugi
Respondent
Joyce Nyokabi Ngugi
Respondent
Milkah Wanjiru Ngugi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Consolidation of Appeals
Legal Issues
- 1 Whether Civil Appeal No. 106 of 2014 and Civil Appeal No. 40 of 2014 should be consolidated and heard together.
- 2 Whether the issues raised in both appeals are similar and arise from the same judgment.
- 3 Whether the court has jurisdiction to consolidate the appeals without pleadings from both files.
Ratio Decidendi
The court found that both Civil Appeal No. 106 of 2014 and Civil Appeal No. 40 of 2014 arise from the same judgment in Kiambu Principal Magistrate’s Court Succession Cause No. 246 of 2004, involve members of the same family, and raise similar issues regarding the jurisdiction of the magistrate’s court and the distribution of the deceased’s estate. The court held that consolidation is appropriate to ensure just, expeditious, and proportionate resolution of the disputes, in line with the overriding objectives of the Civil Procedure Act. The absence of pleadings from one file does not preclude consolidation where the court is satisfied that the matters are interrelated and will benefit from...
Court Disposition
application for consolidation allowed
Orders
- Civil Appeal No. 106 of 2014 and Civil Appeal No. 40 of 2014 are consolidated and shall be heard in one court within the Family Division on a date to be fixed at the registry.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL APPEAL NO. 106 OF 2014
IN THE MATTER OF NGUGI GATHINWA alias GEOFFREY NGUGI GITHINWA (DECEASED)
DAMARIS NYAMBURA NGUGI............................................................APPLICANT
VERSUS
FRANCIS MUTUA NGUGI.........................................................1ST RESPONDENT
JOYCE NYOKABI NGUGI........................................................2ND RESPONDENT
MILKAH WANJIRU NGUGI.......................................................3rd RESPONDENT
RULING
By the application under certificate of urgency filed on 4th June, 2015, the Applicant’s advocate Mr. E. Gaturu applied for consolidation of Civil Appeal Number 106 of 2014 and Civil Appeal Number 40 of 2014 both in the Family Division of the High Court, to be heard in one Court. The basis is that both appeals are from the same matter whose judgment was rendered on 7th May, 2010 in Kiambu Chief Magistrate’s Court Succession Cause No. 246 of 2004. Secondly the parties are similar and the issues raised on both appeals for determination are similar too.
The 2nd Respondent Joyce Nyokabi Ngugi filed grounds of opposition of 16th June, 2015 and through her lawyer Mr. Kimani and stated that the two (2) appeals should not be consolidated on the following grounds;
The Applicant did not attach pleadings of Nairobi High Court Civil Appeal No. 40 of 2014
This Court cannot make the order without looking at and reading through the Appeal No. 40 of 2014.
The grounds of appeal are not similar.
The appellant’s application lacks merit and should be dismissed.
The Court has perused both appeals and observed as follows;
In Civil Appeal No. 106 of 2014 the appellant; Damaris Nyambura Ngugi is the 3rd wife of the deceased. She is aggrieved by the judgment of the Principal Magistrate in Succession Cause No. 246 of 2004 because she and her eleven (11) children were disinherited from the deceased’s estate among other grounds.
In Succession Appeal No. 40 of 2014 Milkah Wanjiru Ngugi, the daughter of the deceased by the 4th wife (who is deceased) is aggrieved by the judgment of the Kiambu Principal Magistrate’s Court in Succession Cause No. 246 of 2004 on the following grounds;
The Magistrate’s Court lacked jurisdiction because the value of the estate exceeded the Court’s pecuniary jurisdiction.
The confirmation of grant was due to improper disclosure of material facts and it amounted to exclusion of some beneficiaries.
This Court is of the following views;
The two (2) appeals are interrelated
The Appellants and Respondents in both appeals are members of the family of the deceased Ngugi Gathinwa alias Geoffrey Ngugi.
The appeals arise from the same judgment of the Court in Kiambu Principal Magistrate’s Court Succession Cause No. 246 of 2004 dated on 7th May, 2014.
Even if heard in separate Courts the same issues will arise for determination.
These issues are;
The question of jurisdiction of the Court in Kiambu Law Courts hearing and determining the matter;
The mode of distribution of the deceased’s estate, which invariably includes determination of who are the beneficiaries, the assets that comprise the deceased’s estate and the most fair and equitable mode of distribution
By virtue of Section 1A and 1B of the Civil Procedure Actas these proceedings are in form of civil process albeit under the Family Law Division and applying the Law of Succession Act Cap 160,civil disputes should be resolved fairly and expeditiously.
The import of Section 1A and 1B of Civil Procedure Act is that the overriding objective of civil process is to facilitate the just, expeditious proportionate and affordable resolution of civil dispute both in terms of time, resources and expeditious disposal of cases .
The Court orders as follows
Civil Appeal No. 106 of 2014 and Civil Appeal No. 40 of 2014 be consolidated and heard in one (1) Court within the Family Division. On a hearing date obtained in the Registry.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2015.
M. W. MUIGAI
JUDGE
In the presence of;
Mr. Gaturu for the Appellants, and
Mrs. Kuria for the Respondents.