[2022] KEHC 10627 (KLR)
The court held that it lacked jurisdiction to entertain an application for revocation of a grant issued by the Chief Magistrate’s Court in a separate High Court file. Furthermore, the court found that the application was res judicata because a similar application had already been dismissed by the Chief Magistrate’s...
Source-derived case information.
- Citation
- [2022] KEHC 10627 (KLR)
- Parties
- Applicant: Samuel Kimani Gichuhi; Respondent: Jeremiah Njoroge Gichuhi
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 48 of 2018
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Revocation of Grant, Probate and Administration, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kimani Gichuhi
Applicant
Jeremiah Njoroge Gichuhi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the High Court has jurisdiction to revoke a grant issued by the Chief Magistrate's Court in a separate file.
- 2 Whether the application for revocation is barred by the doctrine of res judicata due to a previous dismissal of a similar application.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain an application for revocation of a grant issued by the Chief Magistrate’s Court in a separate High Court file. Furthermore, the court found that the application was res judicata because a similar application had already been dismissed by the Chief Magistrate’s Court and no appeal had been filed. The combination of lack of jurisdiction and the bar of res judicata rendered the application fatally defective and incapable of being entertained by the High Court.
Court Disposition
application dismissed
Orders
- The summons dated 17th September, 2014 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
In re Estate of Kaniaru Gichui (Deceased) (Succession Cause 48 of 2018) [2022] KEHC 10627 (KLR) (26 May 2022) (Ruling)
Neutral citation: [2022] KEHC 10627 (KLR)
Republic of Kenya
In the High Court at Kiambu
Succession Cause 48 of 2018
MM Kasango, J
May 26, 2022
IN THE MATTER OF THE ESTATE OF KANIARU GICHUI (DECEASED)
Ruling
1. The application before me dated 17th September, 2014 was filed by Martha Muthoni Gichuhi (now deceased). On her passing away, she was substituted by her son Samuel Kimani Gichuhi. The application is for revocation of the grant and the confirmed grant issued in Chief Magistrate’s Court Thika Succession Cause No. 290 of 2001.
2. Parties elected to rely on affidavits witness statements and written submissions. I have considered them.
Analysis 3. I will not go into the core upon which revocation of the grant is sought because there is an error in that the application is filed before the High Court and it seeks to revoke the grant issued before the Thika Chief Magistrate’s court being Succession Cause No. 290 of 2001. The application will fail for the reason that revocation of grant cannot be sought in a separate file to the file where the grant was issued. It is more even troubling because the respondent’s affidavit sworn by Jeremiah Njoroge Gichuhi states that a similar application was made by Martha Muthoni Gichuhi deceased before the Thika Chief Magistrates Court in Succession Cause No. 290 of 2001 which application was dismissed. The deponent further stated that no appeal was filed against that dismissal.
4. It follows that not only did the applicant err to file revocation application before the wrong but further erred to file another application when one such application was dismissed by Thika Chief Magistrate’s court. That dismissal renders the present application before me res judicata.
Disposition 5. It is in view of the above finding that the summons dated 17th September, 2014 is dismissed. There shall be no orders as to costs to that application because it is a matter involving very close family members.
6. This file shall henceforth be closed.
RULING DATED AND DELIVERED AT KIAMBU THIS 26THDAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor Samuel Kimani Gichuhi (Applicant) : - Mr. MachariaH/B Mr. KariukiFor Jeremiah Njoroge Gichuhi (Respondent):- Ms. WainainaH/B Mr. NgigiRULING delivered virtually.MARY KASANGOJUDGE