[2023] KEHC 20617 (KLR)

In re Estate of Isaac Kipkorir Arap Salat (Deceased) (Succession Cause 299 of 1992) [2023] KEHC 20617 (KLR) (Family) (3 July 2023) (Ruling)

Neutral citation: [2023] KEHC 20617 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 299 of 1992

MA Odero, J

July 3, 2023

Between

Margaret Madge Chepkemoi Salat

Applicant

and

Josephine Chesang Chepkwony Salat

Respondent

Ruling

1. Before this court is the notice of preliminary objection dated September 14, 2022 filed by the respondent Josephine Chesang Chepkwony Salat. The preliminary objection was opposed by the applicant Margaret Madge Chepkemoi Salat.

2. The matter was canvassed by way of written submissions. The respondent filed written submissions dated December 20, 2022 whilst the Applicant relied upon the written submissions dated January 30, 2023.

BACKGROUND 3. This Succession Cause relates to the estate of the late Issac Kipkorir Arap Salat (hereinafter the ‘the Deceased’) who died intestate on November 29, 1987. Following the demise of the Deceased his widows and brother petitioned for Grant of letters of Administration Intestate. On June 3, 1992 a Grant was issued in the names of Daniel Kipkurui Salat, Elizabeth Chepkoech Salat and Josephine Chesang Chepkwony Salat. The Grant was duly confirmed on June 7, 2021 and was later rectified on July 20, 2022 following the demise of one Administrator.

4. Thereafter the applicant Margaret Madge Chepkemoi Salat who is the daughter of the deceased Administrator Elizabeth Chepkoech Salat filed a Notice of Motion dated September 14, 2022 seeking the following orders:-1. Spent.2. That this honourable court be pleased to order that the Deputy Registrar does sign the mutation forms, the consent and the transmission forms in respect of L.R No. 631/1036 Kericho Town Commercial Plot on behalf of the Respondent.3. That the land Registrar does process the transmission of title in respect of L.R No. 631/1036 Kericho Town Commercial Plot without the surrender of the original title deed which is in the custody of the Respondent.4. That costs of this application be provided for.”

5. Before the said application could be heard the respondent filed a notice of preliminary objection dated November 14, 2022 which was premised upon the following grounds:-1. That the applicant’s application dated September 15, 2022 is misplaced and a clear abuse of the court process and we pray that the same be dismissed with costs.2. That the applicant’s application dated September 15, 2022 herein is misconceived, incompetent, fatally defective, premature, hollow, bad in law, incurable, frivolous, a non starter and a clear abuse of the court process.3. That this honourable court has no jurisdiction to entertain the application dated September 15, 2022 as it has become functus officio having fully discharged its duty.4. That the issues raised have since been heard and determined by the Nairobi Court of Appeal in Civil Appeal No. 211 of 2012, Elizabeth Chepkoech Salat versus Josephine Chesang Chepkwony Salat.5. That the issues raised are res judicata as the same have since been heard and determined by this court.6. That the present application is subjudice as the respondent has a pending application before the Nairobi Court of Appeal in Civil Appeal No. 211 of 2012, Elizabeth Chepkoech Salat versus Josephine Chesang Chepkwony Salat.7. That the firm of M/S Mutai Kipkemoi Advocates who filed the present application on behalf of the applicant are not properly on record as per Order 9 Rule 9 of the Civil Procedure Rules.8. That the application is hopelessly incompetent, fatally defective and has been brought in clear disregard of the due process and the same ought to be dismissed forthwith with costs, even suo moto.

Analysis and Determination 6. I have carefully considered this preliminary objection as well as the written submissions filed by both parties.

7. The only issue for determination is whether the preliminary objection filed by the respondents has merit.

8. The definition of a preliminary objection was given in the case of Mukisa Biscuits Manufacting Company LtdvWest End Distributors Ltd (1969) EA where the court states as follows:-“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submissions that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. “…….A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleased by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion”.

9. In Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others (2015) eKLR, the Supreme Court of Kenya stated as follows:-“A preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the court has to be satisfied that there is no proper contest as they are prima facie presented in the pleadings on record”.

10. Therefore, in order for a preliminary objection to succeed the following tests must be satisfied.(i)The Preliminary Objection should raise a pure point of law.(ii)The Preliminary Objection must be argued on the assumption that all the facts pleaded are correct.(iii)The Preliminary Objection cannot be raised if any fact is to be ascertained or if what is being sought is the exercise of judicial discretion.(iv)A valid Preliminary Objection ought if successful dispose of the entire suit.

11. Therefore, a genuine and proper preliminary objection can only raise points of law and must not itself derive its foundation on facts or information which stands to be tested by normal rules of evidence.

12. In the case of John Musakali v Speaker County of Bungoma & 4others (2015) eKLR where the court stated:“The position in law is that a Preliminary Objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the Preliminary Objection should have the potential to disposing of the suit at the point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable Preliminary Objection on point of law.”

13. Similary, in the case of Oraro v Mbaja (2005) KLR 141, Ojwang J. (as he then was) expressed himself thus:“A ‘Preliminary Objection’ correctly understood is now well defined as and declared to be appoint of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence….”

14. In the notice of preliminary objection, the respondent has alleged that this court lacks jurisdiction to entertain the application filed by the applicant as the same is “Res Judicata”. These are both preliminary points which qualify as genuine points law. I find that this Notice of preliminary objection is properly before the court.

15. The Respondent asserts that this court has no jurisdiction to entertain the application dated September 14, 2022. It is trite law that where a court finds it is without jurisdiction in the matter before it then that court must down its tools immediately.

16. In Owners Of Motor Vessel “Lillian S”vCaltex Oil (k) Ltd[1989] KLR the court of Appeal held that jurisdiction is everything without which a court of law has no power to make one more step. Where a court of law has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter the moment it holds the opinion that it is without jurisdiction”. [own emphasis]

17. The respondent contends that the present application is Res Judicata as the High Court had already dealt with this matter and rendered a judgement on June 12, 2015.

18. Black’s Law Dictionary 8th Edition defines the term functus officio as follows:-“(having performed his or her office” (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

19. The Doctrine of functus officiowas also considered in Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR, where the court of Appeal held that-“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”

20. The record in this matter clearly reveals that the High Court heard this matter and rendered a decision on February 4, 2011. In that judgement the court detailed how the estate of the Deceased was to be distributed.

21. Following the judgement of the High Court the matter went on appeal to the Court of Appeal vide Civil Appeal No. 211 of 2012. The Court of Appeal in its judgement dated June 12, 2015 set aside the judgement and orders of the High Court and directed that the property a commercial Plot in Kericho Town known as L.R No. 631/1036 should be registered in the names of Elizabeth Chepkoech Salat and Josephine Chesang Chepkwony Salat (the Respondents herein) as tenants in common equal shares each on behalf of their respective Houses.

22. The applicant has now come back to the High Court with the Notice of Motion dated September 14, 2022 seeking to have the Hon. Deputy Registrar sign the documents to facilitate the transfer of the subject plot. In other words the Applicant seeks by her application to enforce the judgement of the Court of Appeal.

23. The Respondent submits that the High Court is functus officio having rendered itself regarding the mode of distribution of the estate. However, what is being sought in the application of September 14, 2022 is the ‘enforcement’ of the orders made by the Court of Appeal. The application is not seeking any orders on distribution of property which would negate or contradict the orders made by the court of Appeal. This an application which can properly be heard and determined by the High Court. The issue of ‘functus officio’ does not arise.

24. In conclusion I find no merit in this notice of preliminary objection. the same is dismissed in its entirety. Costs to be met by the Respondent.

DATED IN NAIROBI THIS 3RD DAY OF JULY, 2023. MAUREEN A. ODEROJUDGE