[2016] KEHC 8406 (KLR)
The court held that since the High Court at Kitale had already heard and determined the application for transfer and consolidation, and a ruling had been rendered declining the request, the present application was res judicata. The applicant had already appealed the Kitale court's decision, and any further relief...
Source-derived case information.
- Citation
- [2016] KEHC 8406 (KLR)
- Parties
- Applicant: Clement Solomon Munga; Respondent: Ann Njoki Munga; Respondent: Elizabeth Wacheke; Respondent: Loice Wangoi; Respondent: Priscillah Wangechi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 857 of 1992
- Procedural Posture
- Succession Cause / Ruling on Application for Consolidation and Transfer
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Succession, Grant of Letters of Administration, Distribution of Estate, Consolidation of Proceedings, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Solomon Munga
Applicant
Ann Njoki Munga
Respondent
Elizabeth Wacheke
Respondent
Loice Wangoi
Respondent
Priscillah Wangechi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Consolidation and Transfer
Legal Issues
- 1 Whether the High Court at Nairobi can order the transfer and consolidation of the Kitale petition with the present succession cause.
- 2 Whether the application for consolidation is res judicata following the prior ruling by the High Court at Kitale.
Ratio Decidendi
The court held that since the High Court at Kitale had already heard and determined the application for transfer and consolidation, and a ruling had been rendered declining the request, the present application was res judicata. The applicant had already appealed the Kitale court's decision, and any further relief should be sought through the appellate process or by seeking a stay of proceedings in the appropriate forum. The court therefore dismissed the application for consolidation with costs, emphasizing that the matter had already been conclusively determined by a court of competent jurisdiction.
Court Disposition
application dismissed with costs
Orders
- The application for consolidation and transfer is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 857 OF 1992
IN THE MATTER OF THE ESTATE OF CLEMENT MUNGA MUNA (DECEASED)
CLEMENT SOLOMON MUNGA...................................APPLICANT
VERSUS
ANN NJOKI MUNGA..........................................1ST RESPONDENT
ELIZABETH WACHEKE....................................2ND RESPONDENT
LOICE WANGOI.................................................3RD RESPONDENT
PRISCILLAH WANGECHI.................................4TH RESPONDENT
RULING
1. This matter begun in this court in 1992 following the death of the deceased Clement Munga Muna on 28th July 1990. A grant of letters of administration intestate was issued to Milkah Mwihaki, Clement Solomon Muna and Samwel Nganga Muna on 12th September 1992. The grant was confirmed and the estate of the deceased distributed. There is amended certificate of confirmation issued on 3rd December 1996 showing how the estate was distributed. On 18th June 2012 Anne Njoki Munga, Elizabeth Wacheke, Loice Wangoi and Priscillah Wangechi (the respondents) filed Petition No. 5 of 2012 at the High Court at Kitale against Clement Solomon Munga (the applicant) and Samuel Nganga in which the substantial complaint was the manner in which this estate was distributed to the beneficiaries. There was, among other things, allegation of discrimination of the respondents on ground of sex. The applicant and Samuel filed an application seeking to have the petition transferred to this court to be heard in this Cause. They argued that the issue regarding the identification of the beneficiaries and their respective shares in the estate of the deceased could only be properly dealt with in this Cause. The application was heard by the court in Kitale and a ruling rendered on 10th November 2015 declining the request to transfer.
2. On 13th April 2016 the applicant filed a chamber application before this court seeking that this court orders the transfer of the Kitale petition to this court for consolidation with this Cause, and for hearing and disposal. The application was opposed.
3. It is notable that the ruling in the Kitale petition has been appealed against as shown by the annexed notice of appeal.
4. In my considered view, when the High Court at Kitale declined to transfer the petition to this court to be heard in this Cause in effect it declined to order the consolidation of the two cases. A party dissatisfied with the ruling should seek its review, or appeal against it. The applicant and his colleague decided to appeal. They have to wait for the determination of the Court of Appeal in the matter. They will be at liberty to seek the stay of proceedings of the petition while awaiting the resolution of the appeal. That application will be made either at Kitale or at the Court of Appeal.
5. As things stand, the application filed herein for consolidation has been heard and determined by a court of competent jurisdiction. It is res judicata (Gichuki –v- Gichuki [1982] KLR 285). It is therefore dismissed with costs.
DATED and DELIVERED at NAIROBI this 14TH DECEMBER, 2016.
A.O. MUCHELULE
JUDGE