[2021] KEHC 9498 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

SUCCESSION CAUSE NO. 91 OF 2009

IN THE MATTER OF THE ESTATE OF THE LATE ELIJAH KIMILGO CHUMO (DECEASED)

ELIZABETH CHEPTONUI CHUMO...................................................1ST PETITIONER

LUCY CHELANGAT..............................................................................2ND PETITIONER

-VERSUS-

DAVID KITUR..............................................................................................1STOBJECTOR

RICHARD KIPKEMOI SANG.................................................................2ND OBJECTOR

SAMWEL KIPKURUI SANG...................................................................3RD OBJECTOR

SARAH TAPRANDICH SANG................................................................4TH OBJECTOR

GRACE C. LANGAT..................................................................................5TH OBJECTOR

LEAH CHEPTONUI..................................................................................6TH OBJECTOR

LILY CHEPKOECH..................................................................................7TH OBJECTOR

ESTHER CHELANGAT MILGO.............................................................8TH OBJECTOR

R U L I N G

1. The objectors herein filed a protest dated 27th August, 2019 on the following grounds.

(i) THAT the said Grant of Letters of Administration Intestate issued on 21st December, 2017 was issued irregularly, full of lies and concealed information thereto.

(ii) THAT the said Grant of Letters of Administration issued on 21st December, 2017 was a sham and can never be confirmed whatsoever.

(iii) THAT the parties herein never signed the consent attached thereto as such the said Interim Grant should be revoked thereto.

(iv) THAT the Grant herein be issued to ELIZABETH CHEPTANUI CHUMO and DAVID KITUR is the proper Administrators of the Estate of the Deceased herein

2. The Petitioners filed a Preliminary Objection to the Objector’s protest on the basis that the same is res judicata as the issues raised in the said protest were heard by the Court and determined vide the Judgment dated 4th April, 2019.

3. The parties filed written submissions in the Notice of Preliminary Objection which I have duly considered. The issue for determination in the Notice of Preliminary Objection is whether the protest dated 27th August, 2019 is res judicata.

4. The orders sought in the protest dated 15th February, 2018 which was dismissed by the Court in the Judgment dated 4th April, 2019 are exactly the same as the orders sought by the Protestors in the protest dated 27th August, 2019.

5. The 1st, 2nd and 3rd Objectors were parties in the 1st protest. They have now been joined by the 4th, 5th, 6th, 7th and 8th Objectors.

6. The 2nd and 3rd Objectors have since withdrawn their protest and stated in their Notices of Withdrawal that the entire Parcel of Land was sold to the Catholic Church by the entire family.

7. Section 7 of the Civil Procedure Act Cap.21 Law of Kenya provides as follows:-

" “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of the claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."

8. I find that the issues directly and substantively in issue in the Protest dated 15th February, 2018 are exactly the same as those directly and substantively in issue in the Protest dated 27th August, 2019. In fact they are exactly verbatim.

9. I find that the Protest dated 27th August, 2019 is an abuse of the court process.

10. The fact that the Court did not revoke the grant, does not give the objectors a mandate to renew the protest.

11. The Court also said the Objectors cannot be allowed to benefit from their unlawful acts. Having sold the property to a 3rd party, the objectors would not turn round and say they had no capacity to sell the property.

12. The Court therefore made an exception to the rule that the claim should be litigated in a separate suit and the Court found that there was no concealment of material facts.

13. The Court also found that the Objection ought to have been filed within 30 days upon publication of the Kenya Gazette as required under rule 17 (1) as read with rule 7 (4) of the Probate and Administration Rules. The gazette notice was published on 24th December, 2010 and the objection was filed on 16th February, 2018 a span of close to 8 years after gazettement; section 68 of the Law of Succession Act, Cap 160 makes it clear that an objection may be lodged with the Court, in such form as may be prescribed within a period specified by the notice, or such longer period as the court may allow. The period in this case is the one that is specifically specified by the notice, thus the notice in the Kenya Gazette Notice No. 16622 published 24th December 2010 was thirty (30) days and no more. A longer period can only be granted by court in exercise of its judicial functions and not administrative functions and before the court can grant such longer period, a formal application ought to be filed, considered and appropriate orders granted and in the present case no formal application was filed.

14. I find that the mere addition of more objectors is not a reason to rehear the Protest. I agree with the finding in OMONDI -VS- NATIONAL BANK OF KENYA LIMITED & ORS (2001) EA 177where the court held that, ‘'parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’'In that case the court quoted Kuloba J., in the case of NJANGU -VS-WAMBUGU & ANOR NAIROBI HCCC NO. 2340 of 1991(unreported)where he stated,''If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because a litigant gives his case some cosmetic fact lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…”

15. I find that the Protest dated 27th August, 2019 is an abuse of court process, the same is bad in law as it is res judicata and I accordingly dismiss it with no orders as to costs.

Delivered, signed and dated at Kericho this 29th day of January, 2021.

A. N. ONGERI

JUDGE