[2023] KEHC 24965 (KLR)

In re Estate of Hebron Amunze Ayuke (Deceased) (Succession Cause 45 of 1996) [2023] KEHC 24965 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24965 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 45 of 1996

RN Nyakundi, J

November 7, 2023

Ruling

1. The dispute herein relates to the Estate of Hebron Amunze Auyuke who died intestate his estate survived of the following beneficiaries:1. Barasa G. E Amunze2. Saul Kweyu Amunze3. Saul Ayuke Amunze4. Philip Duke Amunze5. Hyslop Were Akhoya6. Jeremiah Ingalia Akhoya7. Emmanuel Akhoya Amunze8. Reuben Mulupe Amunze9. Elizabeth Mupapale10. fanuel Yabunge11. david Adongo Amunze12. Jackson A. Amunze13. Jariel M. Amunze14. Andrew Amunze15. Mrs Felister Amunze16. Mrs. Esthater Luane

2. Correspondingly, by dint of the court instruments the following was identified as the free estate of the deceased:1. S/kabras /chesero/2262. S/kabras/chesero/2953. S/kabras/chesero/3064. S/kabras /chesero/2615. S/kabras/chesero/1506. Kolongolo/block 2/buketi/plot No 37. Kolongolo/plot No7048. Kolongolo/block2 Biketi/7plot No 2789. Kolongolo /block 2 /biketi 7/27710. tractor Reg. Kcn 803Trailer Reg. 2b 887 Harrow11. maize, Flour Mill, Tiller13. tractor Reg.no Ksf (ford Disc Plough)

3. This intestate estate was duly confirmed on 19th February, 2014 vide certificate of confirmation of grant signed by Fred Ochieng J as he then was. On 11th August, 2015 summons was taken by Barasa G E. Amunze one of the administrators of the Estate seeking that the certificate of confirmation of grant be rectified to include land parcel No. South Kabras/Chesero/227 ( the subject land ) which had allegedly been left out in the distribution of the estate and that the said land be allocated to him. This application was heard on the merits by Githinji J and dismissed by Githua J on February 16, 2016.

4. It is apparent that the beneficiaries to the estate were not satisfied with the ruling and they filed the following applications. One dated March 23, 2022 seeking the court to grant an order which reads:1. That the grant of probate (or administration intestate) or with will annexed) made to the said petitioner on 19th day of February 2014 be rectified.2. That the cost of this application be cost in the causeIn support of the application is an affidavit by Barasa sworn with the following evidential material in mind:1. That a grant of administration of the said estate made to us in this matter on the 9th February,2014 and confirmed on 7th day of February 2014. 2.The deceased was survived by the following dependantsa.Barasa G.E Amunzeb.Saul Kweyu Amunzec.Saul Ayukad.Philip Duke Amunzee.Hyslop Were Akhoyaf.Jeremia Ingalia Akhonyag.Emmanuel Akhonya Amunzeh.Reuben Mulupi Amunzei.Elizabeth Mapapalej.Fanuel Yabungek.David Adongo Amunzel.JacksonA.Amunzem.Andrew Amunze (widow)n.Mrs Esther Luane (widow)3. That there was an error on the share of the beneficiaries4. That the land had not been properly surveyed at the time of applying for the confirmation5. That the beneficiaries share was just approximated6. That after engaging a competent surveyor, the estate was ascertaining and determined as follows:7. That the proposal was for the grant to be rectified in terms of the following model:Barasa G. E Amunze: S Kabaras/Chesere/2236 6. 91 Ha.(Kolongolo/Block 2 Biketi 7 plot No 278 (Half plot)Saul Kweyu Amunze S. Kabras/Chesero/226 6. 10 HaSaul Ayuka amunze S.Kabras /Chesero/226 3. 55HaPhilip Duke Amunze S. Kabras /Chesero/296 4. 79HaHyslop Were Akhoya S. Kabras /Chesero/296 0. 95HaKolongolo/Block 2 Biketi 7 Plot No 227 Whole plotJeremia Ingalia S.Kabras/Chesero/295 0. 95HaEmmanuel Akhonya S.Kabras/Chesero/295 1. 30Ha.Reuben Mulupi Amunze S.Kabras/Chesero/306 2. 6 Ha.Elizabeth Mupapale S. Kabras/Chesero/261 1. 0HaFanuel Yabunge S. Kabras/Chesero/150 1. 4HaDavid Adongo Amunze Kolongolo/ Block 2/Biketi 7 plot3 3. 24 HaJackson A.Amunze Kolongolo/Block2Biketi 7 plot No.3 5. 2 HaJarie M Amunze Kolongolo /Block plot No 704 4. 2 HaAndrew Amunze Tractor Reg. No KCN803Trailer Reg. 2B 887 HarrowFelister Amunze (Widow) Tractor Reg. KSF467 (FRD) Disc ploughEsther Luane (Widow) Maize Mill, FlourMill, Tiller

5. The amended affidavit in support was opposed by the rest of the beneficiaries namely: 1) Reuben Amunze. (2) Philip Amunze (3) Saul Amunze (4) Jeremia Akhonya & (5) Saul A.amunze in which they jointly deposed as follows:1. That: due to polygamous disputes, differences and interests it was only necessary that the Estate of the late Hebron Amunze be put under three administrators who were named as:i.Later Mark Amunze- to present the interest of the 1st Houseii.Barasa Amunze (Applicant in this matter) to represent the interests of the 2nd Houseiii.Esther Lwane (3rd wife of the late Hesbron Amunze) to represent the interests of the 3rd House2. That indeed the letter of administration were issued to the three administrators on 8th September1996(annexed 001-letter of administration)3. That due to polygamous difference in handling the property of the later Hebron Amunze the process of distribution was delayed until 2001when the later Mark Akhonya died leaving the estate undistributed.4. That upon the death of the late Mark Amunze the applicant herein who was an administrator paralyzed the process of succession and through fraudulent dealings started to frustrate the 1st house. He took over larger pieces of land upon him to cultivate and denied us access to some parts of our later fathers’ land.5. That during a family meeting it was agreed that the land number South Kabra/Chesero 226 be shared by four beneficiaries with each getting acreages asper the certificate of confirmation of grant being:i.Barasa G. E amunze 6. 53 Hactaresii.Saul Kweyu Amuze 6. 07 Hacturesiii.Philip Amunze 4. 45 Hacturesiv.Saul Ayuka Amunze 4. 45 Hactures6. That the said land having one title deed, is physically divided into two big portions by the main Kakanega-Webuye highway and the applicant is contesting that he must take the entire upper portion while the other three beneficiaries to share in the lower portion.7. The objectors herein avers that a certificate of confirmation of grant issued by a court of law is an order of the court and the same cannot be violated by a party who is seeking selfish-interests against the other parties

6. Besides the above affidavits, the court also received and admitted the evidence of the surveyor commissioned to look at the entire topographical estate with a view to harmonize any differences which may arise as between the certificate of confirmed grant dated February 19, 2014 and annexed title deeds. Having appreciated the historical litigation of this succession cause and the various applications, lodged before this court for determination I make the following findings: First and foremost, the application dated March 23, 2022 filed by Barasa Muse is res-judicata in terms of the provisions section 7 of the Civil Procedure Act as weighed against the ruling of Githua J dated February 16, 2016. This is also in line with time tested principles in the cases of: Sirei Ram Kaura v M.J.E.Morgan, CA 71/1960 [1961]E.A462 the then EACA stated that:

7. The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...

8. The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before ...

9. The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.

10. It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.”

11. It is notable that there must be an end to litigation either at interlocutory stage on the same facts and a final decision is reached or on the finality of judgement on the merits with a decree issued to foreclose the litigation. Such issues supposedly cannot be resurrected by any of the parties to form a new cause of action to be heard and determined by the courts. This is what the court of appeal had in mind when making a decision in the case of: Highway Development Ltd –vs- Central Bank of Kenya, Exchange Bank Ltd (In voluntary liquidation) and Kamlesh Mansukhla Pattni: “That there must be an end to applications of similar nature, that is to further, under principles of Res-judicata apply to applications within the suit. If that was not the intention, we can imagine that the court could and would be mandated by new applications filed after the original one was dismissed. There must be an end to interlocutory application as much as there ought to be an end to litigation. It is this precise problem that section 89 of or Civil Procedure Act caters for.”

12. In this litigation, either in substance or procedure a final judgment of a kind has been reached by a session judge with concurrent jurisdiction with this court. The beneficiaries to this estate have no reason to re-litigate on the same subject matter as to rectification or appointment of administrators. The transmission of the estate is at its final stages in compliance with the law and subsequently filing of the probate account to permit this court to discharge the beneficiaries. The questions that arise have to do with implementation of the distribution in accordance to the certificate of confirmed grant with any minimal variations as stated in court by the surveyor. There is no difficulty or uncertainty in the certificate of confirmed grant to suggest existence of a patent defect or error on the phase of the record requiring rectification. Simply because there are variations of allotted shares to the beneficiaries is no ground to impeach the validity of the certificate of confirmed grant. Once a matter is finally decided by a competent court no party should be allowed or permitted to re-open it at whim even after five or ten years have elapsed in a subsequent litigation. How many times beneficiaries should be permitted to harass each other for the same cause of action is a travesty of justice. The objects of rectification on a certificate of confirmed grant has sometimes been abused by the parties to the detriment of the interest of justice to an intestate estate. In the instant application, it means the effect of that ruling by Githua J is pleaded by a way of estoppel in the subsequent application by Barasa Amunze. Therefore, even the issue of the surveyor and matters arising from that survey should have been dealt appropriately by the administrator and as a consequence a probate account be filed before this court within a periodof6 months. The complementary of it, is to support the minimal variations on transmission of the estate to the beneficiaries without primarily affecting the material substance of the certificate of confirmed grant. The issue of access roads to the property is not even a question to be referred to the probate court for determination. Whether it emerges certain occupational preferences by any of the beneficiaries are to be taken into account is a non justiciable issue of a probate court.

13. As a cautionary statement the beneficiaries are urged to down tools of weaponisation against each other under the guise of a cause of action on distribution of the estate pending before this court. Fortunately they were in court on 13th April, 2023 when the surveyor gave evidence on the meaning, nature, and scope of the survey plan in respect of Parcel S.Kabras /Chesero /226. The accompanying notes are crystal clear that no substantive conflict was established between the certificate of confirmed grant and re-confirmation of the beacons around the property.

14. For those reasons, the invoked claim by the parties on rectification and appointment of new administrators to replace Barasa Amunze must be rejected. such a claim is an abuse of the court process whose main objectives on examination of the affidavits from both parties is to delay the conveyance and transmission of the estate to the beneficiaries.

15. Being a family matter, no costs are awarded.

DATED, SIGNED AND DELIVERED VIA EMAIL ON THIS 7TH DAY OF NOVEMBER,2023. .................................R. NYAKUNDIJUDGE