[1997] KECA 365 (KLR)
The Court of Appeal held that Succession Cause No. 206 of 1994 was not res judicata because a consent order had set aside the previous suit (Succession Case No. 46 of 1981) and directed that the matter be heard afresh in the High Court. The High Court erred by failing to distinguish between Civil Case 1055 of 1994,...
Source-derived case information.
- Citation
- [1997] KECA 365 (KLR)
- Parties
- Appellant: Francis Kabaa; Respondent: Nancy Wambui; Respondent: Jane Wanjiru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 138 of 1996
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- JE Gicheru, AM Akiwumi
- Legal Topics
- Res Judicata, Succession Proceedings, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kabaa
Appellant
Nancy Wambui
Respondent
Jane Wanjiru
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether Succession Cause No. 206 of 1994 was res judicata.
- 2 Whether the High Court erred in holding that the matter was already decided.
Ratio Decidendi
The Court of Appeal held that Succession Cause No. 206 of 1994 was not res judicata because a consent order had set aside the previous suit (Succession Case No. 46 of 1981) and directed that the matter be heard afresh in the High Court. The High Court erred by failing to distinguish between Civil Case 1055 of 1994, which was res judicata, and Succession Cause No. 206 of 1994, which was unaffected by the previous proceedings. The order of Mbito, J. setting aside the earlier proceedings remained in force, and thus the doctrine of res judicata did not apply to the current succession cause. The appeal was therefore allowed, and the High Court's ruling was set aside.
Court Disposition
appeal allowed
Orders
- The appeal succeeds with costs for the appellant.
- The High Court's ruling that Succession Cause No. 206 of 1994 was res judicata is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, AKIWUMI, JJ.A. & BOSIRE, AG.J.A.)
CIVIL APPEAL NO. 138 OF 1996
BETWEEN
FRANCIS KABAA ........................................ APPELLANT
AND
1. NANCY WAMBUI
2. JANE WANJIRU ..................................... RESPONDENTS
(Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Justice sheikh Amin) dated 14th day of September, 1994 in SUCCESSION CAUSE NO. 206 OF 1994) **********
JUDGMENT OF THE COURT
The short point in issue in this appeal is whether the matter before Amin, J. namely, Succession Cause No. 206 of 1994 which had been filed in the High Court was res judicata. This suit had been filed as a result of an unchallenged consent order made that the previous suit Succession Case No. 46 of 1981, in the District Magistrate's Court, Kikuyu be set aside and the matter heard de novo in the High Court by way of a succession cause which materialized as Succession Cause No. 206 of 1994. Indeed, this was recognized by Shah, J. as he then was, when dealing with another matter Civil Suit No.
1055 of 1994 which he held was res judicata and in which ruling, he drew attention to the fact that Succession Cause No. 206 of 1994 was unaffected. It would seem that when the matter came before Amin, J. he failed to distinguish between Civil Case 1055 of 1994 was Succession Cause No. 206 of 1994. If he had considered this and the pleadings before him carefully, he would certainly not have held in his brief ruling that Succession Cause No. 206 of 1994 was res judicata.
We are of the view that the order of Mbito, J. still subsits and it cannot therefore be said that Succession Cause No. 206 of 1994 was res judicata. In the result the appeal succeeds with costs for the appellant. It is so ordered.
Dated and delivered at Nairobi this 13th day of June, 1997.
J. E. GICHERU
................
JUDGE OF APPEAL
A. M. AKIWUMI
................
JUDGE OF APPEAL
S. E. O. BOSIRE
................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.