[2002] KEHC 1005 (KLR)
The court found that the applicants, or those under whom they claim, had previously brought a similar claim seeking revocation of the grant on the basis that there was no valid Will, and lost. That judgment was not appealed. The doctrine of res judicata applies, barring the applicants from bringing the same claim...
Source-derived case information.
- Citation
- [2002] KEHC 1005 (KLR)
- Parties
- Applicant: Leah Wanjiku; Applicant: Leah Nyagaki; Applicant: Esther Githiga; Respondent: Frasia Wanjiku Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 251 of 1988
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification/amendment of Certificate of Confirmation
- Outcome
- application dismissed
- Judges
- JM Khamoni
- Legal Topics
- Succession, Grant Revocation, Will Validity, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Wanjiku
Applicant
Leah Nyagaki
Applicant
Esther Githiga
Applicant
Frasia Wanjiku Kariuki
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Rectification/amendment of Certificate of Confirmation
Legal Issues
- 1 Whether the applicants are entitled to seek rectification or amendment of the certificate of confirmation after a previous unsuccessful attempt to revoke the grant on grounds of invalidity of the Will.
- 2 Whether the doctrine of res judicata bars the applicants from re-litigating the same issues previously determined by the court.
Ratio Decidendi
The court found that the applicants, or those under whom they claim, had previously brought a similar claim seeking revocation of the grant on the basis that there was no valid Will, and lost. That judgment was not appealed. The doctrine of res judicata applies, barring the applicants from bringing the same claim again. The court held that neither Leah Wanjiku nor Leah Nyagaki and Esther Githiga, who claim under their late mother Margaret Wambui Kariuki (a previous litigant), are entitled to re-litigate the matter. The summons for rectification or amendment of the certificate of confirmation was therefore dismissed as an abuse of process.
Court Disposition
application dismissed
Orders
- The summons dated 19th September 2002 is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI SUCCESSION CAUSE NO. 251 OF 1988 IN THE MATTER OF THE ESTATE OF KARIUKIKAMAU (DECEASED)
1. LEAH WANJIKU
2. LEAH NYAGAKI
3. ESTHER GITHIGA ……………………………. APPLICANTS
VERSUS
FRASIA WANJIKU KARIUKI …. EXECUTOR/RESPONDENT
R U L I N G
Although in this summons dated 19th September 2002 the Respondent, Frasia Wanjiku Kariuki, was served and has failed to come up to oppose the application requiring rectification or amendment of the certificate of confirmation and although the Applicants Leah Wanjiku, Leah Nyagaki and Esther Githiga claim that they had never litigated against the Administrator Frasia Wanjiku Kariuki before, I find, from my perusal of this case file and from what the Applicants have told me that the Applicants brought a similar claim desiring revocation of grant on the basis that there was no valid Will.
They lost. At that time Leah Wanjiku had teamed up with the late Margaret Wambui Kariuki who was the mother of Leah Nyagaki and Esther Githigu who seem to have been married at that time. Leah Wanjiku and Margaret Wambui Kariuki lost the case as can be seen in the judgment of J.F. Shields J. dated 23rd June 1993. The decision was not that they share the estate as the applicants before me now claim. There was no appeal against that judgment and Frasia Wanjiku Kariuki therefore went a head to administer the estate in accordance with that Will.
Leah Wanjiku is not therefore entitled, in law, to come back to this court to make the claim she is making. Similarly Leah Nyagaki and Esther Githigu are not entitled because they are litigating under their mother who, like Leah Wanjiku, should not come back to this court, if she were alive, to make the claim her daughters are making. “The matter is res judicata.
Accordingly the summons dated 19th September 2002 be and is hereby dismissed.
Dated this 14th Day of October 2002.
J.M. KHAMONI
JUDGE