[2016] KEHC 1851 (KLR)
The court found that the plaintiffs' suit was barred by the doctrine of res judicata, as the same claim had previously been dismissed in Murang'a CMCC No 166 of 2012 for failure to disclose a reasonable cause of action. The court further held that the Law of Succession Act, Cap 160, only applies to the estates of...
Source-derived case information.
- Citation
- [2016] KEHC 1851 (KLR)
- Parties
- Plaintiff: Ephantus Gikonyo Maina; Plaintiff: Harrison Maina Gikonyo; Plaintiff: John Mwangi Maina; Defendant: Muraguri Gathegu
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 66 of 2013
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- suit struck out with costs to the defendant
- Judges
- DW Mbuteti
- Legal Topics
- Res Judicata, Reasonable Cause of Action, Succession Rights, Inheritance of Living Person, Adult Children Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus Gikonyo Maina
Plaintiff
Harrison Maina Gikonyo
Plaintiff
John Mwangi Maina
Plaintiff
Muraguri Gathegu
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is res judicata in light of Murang'a CMCC No 166 of 2012.
- 2 Whether the suit discloses a reasonable cause of action under the Law of Succession Act, Cap 160.
- 3 Whether adult children can claim inheritance or provision from a living parent under Kenyan law.
Ratio Decidendi
The court found that the plaintiffs' suit was barred by the doctrine of res judicata, as the same claim had previously been dismissed in Murang'a CMCC No 166 of 2012 for failure to disclose a reasonable cause of action. The court further held that the Law of Succession Act, Cap 160, only applies to the estates of deceased persons and not to those of living individuals. Therefore, the plaintiffs' attempt to enforce inheritance rights against a living parent was misconceived and not supported by law. The court also clarified that, generally, there is no legal obligation for a father to provide for adult children, except in limited circumstances. As a result, the suit was struck out with...
Court Disposition
suit struck out with costs to the defendant
Orders
- The plaintiffs' suit is hereby struck out.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CIVIL SUIT NO 66 OF 2013
1. EPHANTUS GIKONYO MAINA
2. HARRISON MAINA GIKONYO
3. JOHN MWANGI MAINA……………………………….. PLAINTIFFS
VERSUS
MURAGURI GATHEGU………………………………….. DEFENDANT
RU L I N G
1. In this suit the Plaintiffs seek the main relief of a declaration that the Plaintiffs are the biological children of the Defendant and therefore entitled to inherit the Defendant’s movable and immovable properties as provided for under the Law of Succession Act, Cap 160. The Plaintiffs are adults. The Defendant is alive and well
2. The Defendant has raised a preliminary objection to the suit on points of law by notice of motion dated 19/12/2014. Those points of law are –
(a) That the suit is res judicata vide Murang’a CMCC No 166 of 2012.
(b) That the suit does not disclose a reasonable cause of action.
3. In Murang’a CMCC No. 166 of 2012 the same Plaintiffs sued the same Defendant for the main relief of an order to direct the Defendant to transfer to the Plaintiffs respectively land parcels LOC 14/KAMUNE/2380, 2381and 2382. They pleaded in that suit that they are the biological sons of the Defendant; that they are all adults; that the Defendant was required by law and equity to provide for them, including giving them land; that the Defendant intended to disinherit them; and that the Defendant should therefore be ordered to transfer to them the aforesaid parcels of land in order to fulfil his responsibility to them under the law.
4. A preliminary objection on a point of law was raised to that suit to the effect that no proper cause of action in law was disclosed. In a considered ruling dated and delivered on the 28/10/2013 that court upheld the preliminary objection and dismissed the case. The Plaintiffs then filed the present suit.
5. This new suit is not any different from the previous suit. In the present suit, just as in the previous suit, the Plaintiffs are attempting to enforce their perceived rights of inheritance under the Law of Succession Act in respect to the estate of a living person, the Defendant. Cap 160 aforesaid deals with the estates of deceased persons, not living ones. In this regard the Plaintiffs’ suit is obviously misconceived; they have to wait until the Defendant’s estate is available for distribution under Cap 160. It cannot be available while he is living.
6. The notion that a father is obliged in law to provide for adult children is by and large anathema. There may be limited instance where a father may be compelled in law to provide for adult children, but generally speaking, any adult of sound mind and body is under obligation to provide for himself or herself and not expect that responsibility to be taken up by anyone else, not even his or her father.
7. Be all that as it may, the Plaintiffs’ earlier suit was dismissed for failure to disclose a reasonable cause of action. The same claim has been made again in this new suit. The claim is res judicata. I so hold.
8. In the event the Plaintiffs’ suit is hereby struck out with costs to the Defendant. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 10TH DAY OF NOVEMBER 2016
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 11TH DAY OF NOVEMBER 2016