[2024] KEHC 12207 (KLR)

in re Estate of Jackson Karui Githinji (Deceased) (Succession Cause 46 of 1985) [2024] KEHC 12207 (KLR) (8 October 2024) (Ruling)

Neutral citation: [2024] KEHC 12207 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 46 of 1985

DKN Magare, J

October 8, 2024

Between

George Mundia Karui

Applicant

and

Mwangi Karui Githinji

Respondent

Ruling

1. This ruling is in respect of the undated application filed on 18/10/2023 seeking the following reliefs:-a.The Honourable Court be pleased to place a caution against L.R No. Kiine/Kiangai/652 which is illegally occupied by the Respondent since 21st September 1987. b.The costs be in the cause.

2. The application alleges that the Respondent illegally transferred LR. No Kiine/Kiangai/652 to himself without involving the family of the deceased. That the Respondent was given L.R No. Kairia/Iriaini/537 but for selfish reasons also transferred the said land to himself.

3. The Respondent filed a replying affidavit dated 13/2/2024 in which it was deposed that the application was res judicata as the Applicant had filed 5 similar applications which had been determined and dismissed.

Submissions 4. The Applicant filed submissions on 28/6/2024. The submissions do not refer to any statutory or judicial authority. The gist of the homemade submissions, as I struggle to picture, is that the Respondent used fake documents to obtain a fake Grant of Representation by which the Respondent fraudulently acquired title No. Kiine/Kiangai/652.

5. On his part, the Respondent filed submissions dated 21/6/2024. It was submitted that the application was barred by Res Judicata. It was also submitted that the Applicant was vexatious litigant. No reference was made to statutory or judicial authorities.

Analysis 6. The court has perused the file and noted a number of Rulings in some of which the court has lamented about the Applicant filing previous similar applications.

7. To put this application in perspective, the Applicant seeks to place a caution against L.R No. Kiine/Kiangai/652 which is described to have been illegally occupied by the Respondent since 21st September, 1987.

8. I note that on 8/1/2009, the Applicant filed summons for annulment of the grant confirmed on 20/8/1987 on the grounds that the Respondent concealed that there were other beneficiaries and dependents and so obtained the grant without consent of the beneficiaries.

9. On 22/3/2010, this court dismissed the application on the ground that the Applicant was present and a party in the proceedings leading to the confirmation of the grant and indeed confirmed that he had only the Respondent as his brother. The Applicant sought leave of the court to appeal but which was dismissed for being filed inordinately late for up to 8 years. The court also notes that the Applicant filed the summons dated 23/9/2020 and in the Ruling of this court by Sergon J on 17/8/2010, the Honourable Judge lamented that the Applicant was estopped from making a plethora of applications seeking similar orders using different provisions of the law as he was in essence abusing the process of the court.

10. Based on the above observation which I clearly consider in line with the instant application and the pathway through which the Applicant perceives to get justice, I am astonished at the level at which the Applicant in this case has relentlessly waged a tug of war in the form of legal battle against the Respondent, his brother. There is no love lost between them. I hope the children born of these two are not enmeshed into the same desires.

11. However, the path of justice is not laden with opportunities to settle scores. Justice must not be viewed in the thin lenses of what someone conceives and convenes as their meaning of justice. Justice has standards of application. To put it in perspective, justice, in my view, depicts Sir Owen Dixon’s postulation in his Book, Jesting Pilate and Other Papers and Addresses (William Hein & Co Inc, 2nd Ed, 1997) page 160 as follows:“[I]f it is believed that the technique of the common law cannot meet the demands which changing conceptions of justice and convenience make. The demands made in the name of justice must not be arbitrary or fanciful. They must proceed, not from political or sociological propensities, but from deeper, more ordered, more philosophical and perhaps more enduring conceptions of justice. Impatience at the pace with which legal developments proceed must be restrained because of graver issues. For if the alternative to the judicial administration of the law according to a received technique and by the use of the logical faculties is the abrupt change of conceptions according to personal standards or theories of justice and convenience which the judge sets up, then the Anglo-American system would seem to be placed at risk. The better judges would be set adrift with neither moorings nor chart. The courts would come to exercise an unregulated authority over the fate of men and their affairs which would leave our system undistinguishable from the systems which we least admire.”

12. The Applicant herein believes that the Respondent, his brother, used fake papers to obtain a fake grant of representation which his brother proceeded to obtain fraudulent registration of the title Kiine/Kiangai/652. The Applicant has this belief incessantly under his control and has truly made attempts to annul the grant albeit without success. This time round, the Applicant makes attempt to place a caution against the said parcel of land. It is not said the purpose for which the caution should be placed and for how long. It would appear the Applicant will be happy and satisfied as long as the Respondent and himself are not able to freely use the subject parcel of land. But this court does not function in such like tendency admired by the Applicant. The court has rules and principles of procedure and substance which must be adhered to as pathway to justice.

13. Therefore, if the issues raised on the confirmed grant herein dated 20/8/1987 have been determined and the court has found that the grant is valid, for what use would the court grant a caveat or caution over the resultant property without any basis? It would be travesty of justice. Settled issues must be let to rest. That is the essence of the doctrine of res judicata for which is assured the finality to litigation and the protection of parties from being vexed by the same matter twice.

14. In this regard, Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya defines the doctrine of Res Judicata in the following terms: -“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 them 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.”

15. The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms:(1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.(2)—For the purposes of this section, the competence of a court shall be determined irrespectiveof any provision as to right of appeal from the decision of that court.(3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’

16. In the dicta in re Estate of Riungu Nkuuri (Deceased) [2021] eKLR the court stated as follows:The test for determining the application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:"(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

17. Furthermore, in the case of Attorney General & Another ET v [2012] eKLR it was held that;“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & Others [2001] EA 177 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, (as he then was) in the case of Njanju vs Wambugu and another Nairobi HCC 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 he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata…..”.

18. In essence therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson [1843-60] All E.R 378, observed thus:“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”

19. Res judicata applies to applications just like suits. In the case of Julia Muthoni Githinji v African Banking Corporation Limited [2020]eKLR the court stated thus:14. After a careful reappraisal of the application for injunction before the lower court, I have come to the conclusion that the application was res judicata and the entire suit was subjudice as there was an active pending suit before a court of competent jurisdiction being Nakuru ELC No. 272 of 2017. All issues raised in the suit before the subordinate court could be properly litigated in the suit pending before the ELC. The filing of the suit by the appellant in the subordinate court when she had a similar suit in the ELC Court was an abuse of the Court process which the Court cannot countenance.

20. Similarly in Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment) the court stated doth:By comparing the two applications and the authorities on res judicata, it is clear to me that the issues being canvassed in the application dated 11th January 2021 is res judicata. The issues in issue in that application were directly and substantially in issue in the application dated 13th September 2017. These issues relate to the same parties and these issues have been tried by a competent court. To my mind to bring the same issues between the same parties that have been determined by a court of competent jurisdiction is an abuse of the court process.

21. Therefore, it is the finding of this Court that there can be no other reason for which the Applicant seeks to register a caution or caveat over Respondent’s Kiine/Kiangai/652 than for what he avers to be that the Respondent obtained the confirmed grant fraudulently through nondisclosure and therefore the registration of the said property was unlawfully acquired. This same fact has been determined by this court which has variously lamented that the Applicant is filing a myriad applications seeking the same orders in respect to the validity of the impugned grant. A plethora of applications have fallen for want of merit. This application will unfortunately follow suit.

22. There is no material placed before this court based on which a caution, caveat or any inhibition can be issued against the impugned property. Indeed the preamble to the Law of Succession Act states as doth: “An Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons; and for purposes connected therewith and incidental thereto”. This satisfies the objective to preserve the estate of the deceased whether testate or intestate and assures all beneficiaries and dependents an equitable share thereof. The purpose of the law is therefore not to encourage wrangles and tussles among beneficiaries or dependents without a genuine dispute.

23. Therefore, the application is devoid of any merit and must fail. I dismiss it.

24. Before I pen off, I wish to express my disappointment in the manner the Applicant constituted his homemade application. The application is not dated. It is, however, depicted to have been filed on 18/10/2023 as shown in the court filing fees receipt and rubber stamp impression. Were it not for the need for this court to fully determine the merit of the application in the hope of the Applicant changing his litigation stance, the application would have been summarily struck off. The less I say about this the better.

Determination 25. In the upshot, I make the following orders:a.The undated application filed on 18/10/2023 is not merited and is dismissed in limine.b.Due to his incessant interest to litigate, the Applicant shall pay to the Respondent the costs of these proceedings assessed at Kshs. 55,000/- within 30 days in default of which execution do issue.

DELIVERED, DATED AND SIGNED AT NYERI ON THIS 8TH DAY OF OCTOBER, 2024. Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Applicant in personWanjiru for the RespondentCourt Assistant – Jedidah