[2022] KEHC 3162 (KLR)

In re Estate of Iringo Nkubitu (Deceased) (Succession Cause 378 of 2007) [2022] KEHC 3162 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3162 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 378 of 2007

PJO Otieno, J

June 17, 2022

Between

Isaac Muthiora M’Iringo

Petitioner

and

Preginia Nteiga M’iringo

Objector

and

Jane Kaburo Mutethia

1st Protestor

Everlyn Kanana Andrew

2nd Protestor

Doris Nkirote M’iringo

3rd Protestor

Ruling

1. The Petitioner/Administrator Isaac Muthiora M’iringo by the Summons for Confirmation of grant dated 29. 11. 2019 sought for the confirmation of the grant issued to him on the 16th May 2008. By the said application and in the Affidavit in Support thereof, the Administrator discloses the property of the estate to be Nyaki/Murathankari/764 and Nyaki/Giaki/600 and proposes that he gets Nyaki/Murathankari/764 absolutely while Nyaki/Giaki/600 goes to the all the seven beneficiaries including himself with all the five sons getting three (3) acres each while the two widow and daughter get two (2) acres each.

2. Subsequent to the application and the Affidavit in Support, the Administrator filed another Affidavit on proposal for distribution and dubbed in to be guided by the Judgment dated 6th February 2019 and made a proposal that the Parcel No. Nyaki/Giaki/600 be shared as follows:-“Land Reference No. Nyaki/giaki/600 Measuring Approximately 7. 84 HA. (19. 37 ACRES) will be shared as follows:-a.Jerinder Mukomuga Samson - 1. 62 Acresb.Grace Karimi M’iringo and Samson Muriithi - 2 Acres jointlyc.Isaac Muthiora M’eringo - 2. 75 Acresd.Geoffrey Mwiti M’iringo - 2. 75 Acrese.Solomon Kathurima M’iringo - 2. 75 Acresf.Timothy Mwirigi Iringo - 2. 75 Acresg.Ayub Kaai Iringo - 2. 75 Acresh.Isaac Muthiora M’eringo - 2. 0 AcresThat Affidavit also exhibited a document called Consent to the mode of distribution dated June 30, 2020 duly signed.

3. The application provoked a protest by an Affidavit sworn on the August 10, 2020 where it is contended that the three Protestors are the children of the deceased with the Objector.

4. The protest was supported by 3rd Protestor Doris Nkirote M’iringo on the basis that the objection was not done on their behalf as children.

5. To that protest, the Petitioner filed a Preliminary Objection and swore and filed a Replying Affidavit on 26th January 2021 by which he contended that the said protest was a second attempt at canvassing issues already canvassed and determined by the court by its Judgment of 6th February -2019 and were therefore res judicata. The protest was equally resisted by one beneficiary Godfrey Mwiti M’iringo who asserted that the Petitioner is not brother to the Protestors and that the mode of distribution proposed by the Administrator was mutually agreed upon by the beneficiaries and that the issues raised in the protest had been raised in the Objection and duly resolved to the effect that no evidence was availed to show that the 1st Objector/Protestor had children with the deceased and that the Protestors here are mere proxies of their mother the first Objector.

6. After the Court directed that the Protest be heard by way of viva voce evidence and before such evidence could be taken, the Administrator/Respondent sought that his Preliminary Objection needed to be heard in limine and it is that preliminary objection that is subject of this determination.

7. In his oral submissions before the Court, Counsel for administrator took the view that the sole question before the Court in the objection was whether the Objector was married to the deceased and whether her and her children had been excluded and that it is the same question the Court would have to answer for the second time in the Protest and to that extent the question had become res judicata. He cited to Court the decisions in Omutata –vs-CAKwhere it was held that Courts must be vigilant to stop litigants who seek to circumvent the doctrine of res judicata. He also referred the Court to Chepkwony Arap Sigira [2020] eKLR where the Court held the matter to have been barred on account of res judicata on similar set of facts as those disclosed here.

8. For the Protestors, it was submitted that the objection was by Regina Nteiga M’iringo and not the current Protestors and was limited to the issuance of Grant of Letters of Administration and not the mode of the distribution of the Estate. It was stressed that the Court only found that the Objector was not a wife yet the Protestors are children of the deceased and therefore entitled to make a claim as such children.

9. In his rejoinder Counsel for the Administrator took the position that parties must not be allowed to use proxies to defeat the doctrine of re judicata.

Analysis and Determination 10. Res judicata as a principle of law in common law and now coded in our Civil Procedure Act is one of the pillar for the principle of law that litigation needs to be brought to finality and that no party needs to be vexed ad infinitum.

11. Prior to the current protest there was an objection filed by one Penina Nteiga M’iringo on the basis that being a wife to the deceased with three children, both her and the said children had been totally left out by the Administrator. The three children named in the objection are the Protestors before the court now.

12. Then as now, the Administrator and other beneficiary denied the allegation and relationship with the Objector and after viva voce evidence was led, the Court in the Judgment of 6th February 2019 found and held:-“The evidence presented before this Court by the Objector is characterized by substantial contradictions. Furthermore, the Objector has not presented this Court with any birth certificate or immunization cards or some form of evidence to show that her children are children of the deceased. No evidence was adduced to show that she was the second wife of the deceased. Only generalized statements were made that she was married under Kimeru tradition without providing any detail or proof of such marriage or ceremony thereof. Accordingly, I am of the considered opinion that the objection has no merit and is dismissed with costs.” (Emphasis added)

13. The Judgment says that there was no evidence to prove that the Objectors children, the Protestors, were children of the deceased. That is a final determination by a Court of competent and concurrent jurisdiction and Section 7 of the Act is explicit that no Court shall try a suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously in issue between the same parties and between parties under whom they claim. It matters not that the Objector failed to avail evidence to court then which may be presented now. InSalim Ahmed Said v Faud Husen Humeiemn(1960) E.A 97, where it was held:“it appears to us that learned counsel for the appellant overlooks the fact that there may be a statutory direction that in case the plaintiff neglects to provide evidence and to prove his claim as he is bound to do, the court do proceed to decide the suit on such material as is actually before it, and the decision so pronounced shall have the force of decree on the merits notwithstanding the default on the part of the plaintiff.”

14. I do find that in arguing her objection, the Objector was not merely seeking a benefit for herself as widow, but also claiming the right of her three children, the Protestors, as such children. It is that same issue whether or not the Protestors are children of the deceased which this court is now called upon to adjudicate. To allow the matter to proceed cannot escape the perception that the Court is being called upon to revisit its findings dated February 6, 2019. I do find that the issue in controversy in the protest was an issue in the objection and that having been canvassed and determined by the Judgment of February 6, 2019 is not available for regurgitation for a second time because it has become res judicata.

15. On this basis I do accede to the Preliminary Objection and order that the Protest by the three be dismissed with no order as to costs. The grant be confirmed as proposed and consented to by all the beneficiaries. Let the Certificate of Confirmation issue forthwith.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, ONLINE, THIS 17TH DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Njiru for the PetitionersNo appearance for the AdministratorCourt Assistant: Mwenda