[2020] KEHC 10237 (KLR)
The court found that the subject matter and parties in the present cause, the Chief Magistrate's Succession Cause No. 66 of 2016, and Narok High Court Succession Cause No. 1 of 2018 are the same. Since the Chief Magistrate’s court made a final decision, which is now under appeal, the doctrine of res judicata...
Source-derived case information.
- Citation
- [2020] KEHC 10237 (KLR)
- Parties
- Petitioner: Simon Kishanto Kudate; Objector: Kipailoi Ole Munka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2473 of 1999
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application allowed; cause terminated
- Judges
- A Ali-Aroni
- Legal Topics
- Revocation of Grant, Res Judicata, Appeals in Succession, Fraud in Succession, Consanguinity, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kishanto Kudate
Petitioner
Kipailoi Ole Munka
Objector
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant issued in this cause should be revoked due to subsequent circumstances rendering it useless.
- 2 Whether the doctrine of res judicata applies given parallel proceedings and decisions in related succession causes.
- 3 Whether the applicant obtained a grant in the lower court fraudulently.
Ratio Decidendi
The court found that the subject matter and parties in the present cause, the Chief Magistrate's Succession Cause No. 66 of 2016, and Narok High Court Succession Cause No. 1 of 2018 are the same. Since the Chief Magistrate’s court made a final decision, which is now under appeal, the doctrine of res judicata applies. The court cannot determine the matter twice. Therefore, the current cause must be terminated, and the petitioner's recourse lies in the pending appeal. The file is to be transferred to the Narok High Court for further proceedings.
Court Disposition
application allowed; cause terminated
Orders
- The application for revocation of grant is allowed.
- This cause is terminated on grounds of res judicata.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 2473 OF 1999
IN THE MATTER OF THE ESTATE OF KARASINKA OLE SAMURIA Alias KARAZINGA SAMURIA (DECEASED)
SIMON KISHANTO KUDATE..............................PETITIONER
VERSUS
KIPAILOI OLE MUNKA.......................................…OBJECTOR
R U L I N G
1. The application subject of this ruling is dated the 3rd of May 2020 and seeks to revoke the grant herein on grounds that the same has become useless due to subsequent circumstances.
2. The applicant states that unaware of the existence of this cause he petitioned yet for another grant in Narok C.M. Succession Cause No. 66 of 2016 which grant was issued and confirmed.
3. That in CMS.C No. 66 of 2016 the Petitioner herein filed an objection to the said grant, a ruling was given and the petitioner herein being dissatisfied with the said ruling preferred an appeal in the High Court sitting in Narok in High Court Succession Cause No. 1 of 2018.
4. This application is objected to by the Petitioner herein Simon Kishanto Kudate in his lengthy affidavit dated 14th November, 2019 wherein he explains the degree of consanguinity of each one of them with the deceased, the reasons why this matter delayed. Further he accuses the applicant herein of obtaining his grant in the lower court fraudulently and for being an opportunist.
5. Clearly the subject matter before this court, C.M. Succession Cause No. 66 of 2016 and Narok High Court Succession Cause No. 01 of 2018 is the same. Both parties are the same. Equally the Chief Magistrate’s court in CMSC No. 66 of 2016 made a final decision which is now subject of an appeal.
6. Therefore the doctrine of resjudicata comes into play. A matter cannot be determined twice and this cause therefore must be terminated.
7. The Petitioner’s recourse now lies in the appeal in the Narok High Court case.
8. As a point of reference this file will be transferred to the Narok High Court Succession Cause No. 1 of 2018.
9. The application succeeds with no orders as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 22ND DAY OF OCTOBER, 2020.
..........................
ALI-ARONI
JUDGE