[2023] KEHC 25450 (KLR)

In re Estate of Kipsitet Arap Suter (Succession Cause E266 of 2010) [2023] KEHC 25450 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25450 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause E266 of 2010

JRA Wananda, J

November 17, 2023

IN THE MATTER OF THE ESTATE OF KIPSITET ARAP SUTER

Between

Francis Kiptarus Suter

1st Petitioner

Anna Tariki Kipsitet

2nd Petitioner

Alfonce Kiptanui Kipsitet

3rd Petitioner

and

Rael Jepkosgei Mutai

Respondent

Ruling

1. Before the court for determination is a preliminary objection citing the ground of res judicata.

2. The background of this matter is that the deceased, Kipsitet arap Suter died intestate on 26/02/20007 at the age of 94 years. On 17/11/2010, in their capacity as sons and a daughter of the deceased, the petitioners applied for grant of letters of administration. The same was granted by the court 4/07/2011 and was subsequently confirmed on 30/07/2018.

3. However, upon a challenge filed by the objector, videthe Judgment of H. Omondi J (as she then was), the grant was subsequently revoked on 23/10/2019, a new one issued and confirmed on 28/09/2019. Aggrieved by this decision, the petitioners filed a notice of appeal and followed it up with the application dated 8/03/2021 seeking two substantive prayers. The first one was that one William Kosgei Chemjor be substituted into this matter in place of the 2nd petitioner, Anna Teriki Kipsitet who had died on 11/04/2020. The second one was that, pending hearing and determination of the intended Appeal, the Elgeyo Marakwet county land registrar be restrained from registering any subdivision, transfer, charge or such other interests over the property known as Irong/Iten/248 whose distribution the Judge had redistributed.

4. The application was dismissed vide the ruling of Omondi J dated 28/12/2021 and delivered on her behalf by Nyakundi J on 14/02/2022.

5. Undeterred, the Petitioners have now come back with the Summons dated 10/05/2022 urging the Court to review, set aside and/or vary the said Ruling of Omondi J, dated 28/12/2021 and delivered on 14/02/2022. It is this Application that the present Preliminary Objection has been filed against.

6. Quoted verbatim, the application dated 10/05/2022 filed through Messrs Magut Kirigo & Co. Advocates seeks orders as follows:i.[…….] Spentii.That there be interim orders of injunction restraining the Elgeyo Marakwet County Land Registrar from, registering any sub-division, transfer, charge or other dealing on respect of the land parcel known as Irong/Iten/248 pending the hearing and determination of the application herein inter-partes.iii.That the honourable court be pleased to review, set aside and/or vary the ruling and orders made by Hon. Lady Justice Hellen H. A. Omondi J on December 28, 2021 and delivered on February 14, 2022 and in its place there be an order allowing the Summons dated March 8, 2021 in its entirety.iv.That costs of this application be provided for.

7. On its part, the Preliminary Objection dated 27/5/2022 and filed by the Objector through Messrs W. Kigen & Co. Advocates, is premised as follows:i.The applicant's application dated 10/5/2022 is incompetent, frivolous, embarrassing and an abuse of court process.ii.The application is res judicata.iii.This honourable court lacks jurisdiction to entertain the application.iv.The application is fatally defective and a non-starter.

Hearing of the Application 8. With concurrence of the parties, I directed that they file written submissions. Pursuant thereto, the objector filed her submissions on 12/07/2022 while the Petitioners filed on 22/05/2023.

Objector’s Submissions 9. Counsel for the Objector submitted that the principle of res judicata is intended to bar litigants from abusing the Court process where in essence the cause of action is the same, between the same parties as in a previous matter and was heard and determined by a competent Court. He cited section 7 of the Civil Procedure Act and submitted that the present application seeks to halt the sub-division, transfer, charge or other dealings in respect of the property Irong/Iten/248, the application is only fashioned as a back-door appeal against the orders dismissing the Petitioners’ earlier application dated 8/3/2021 in which the petitioners also sought the same orders. He cited the case of Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR and added that the Court having rendered itself on this issue, it is now functus officio subject to the applicant’s right of appeal, the Court cannot therefore re-open or re-engage over the same issue between the same parties. He also cited the case of ICEA Lion General Insurance Co. Ltd v Julius Nyaga Chomba [2020] eKLR and contended that litigation has to come to an end, that the Objector has a right to enjoy the fruits of the ruling delivered on 14/2/2022, and that it is the duty of this Court to safeguard and uphold this right. He further cited the case of Mukesh Kumar Kantilal Patel v Charles Langat & 4 others [2021] eKLR.

Petitioners’ Submissions 10. Counsel for the objector submitted that jurisdiction is everything and without it, a court cannot proceed, section 80 of the Civil Procedure Act confers upon the court the authority to review a decree or order while order 45 of the Civil Procedure Rules sets out the rules for setting aside a Judgment or an order. He cited the cases of Republic v Public Procurement Administrative Review Board & 2others [2018] eKLR and Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eKLR.

11. He submitted further that in the instant case there was an error apparent on the face of the record in that the Court failed to take into consideration the main issue of substitution which was the gist of the Application and an important prayer upon which the Court did not make any order. He cited the cases of Stella Ndunge Kimatu v Teachers’ Service Commission (2021) eKLR and added that the error does not need any explanation, the omission by the Court to address the issue of substitution is a glaring error on the face of it and therefore passing the test laid out in the case of Paul Mwaniki v National Hospital Insurance Find Board of Management (2020) eKLR. He also cited the case of Khalif Sheikh Adan v Attorney General [2019] eKLR.

12. On res judicata, counsel cited section 7 of the Civil Procedure Act and Blacks’ Law Dictionary, 10th Edition, and submitted that in the instant Application, the issue at hand is a prayer for review of an order that had not addressed a prayer made before the Court, such prayer has never been dealt with and therefore did not involve the same issue, the same is not res judicata. He cited the case of Mokua Ongiri v John Nyasende Mosioma (supra) and Enock Kirao Muhanji v Hamid Abdalla Mbarak (2013) eKLR.

Analysis & Determination 13. The issue that arises for determination herein is whether the Application dated 10/05/2022 is Res Judicata

14. The law pertaining to Preliminary Objections was well set out in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors ltd (1969) EA 696, in which the Court of Appeal for Eastern Africa, stated (Law JA) in part as follows:''So far as I’m aware, 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 of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

15. In the same case, Sir Charles Newbold, President of the Court went on to state as follows:“a preliminary objection cannot be said to be such if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

16. Applying the above principles, I find that the issues raised herein meet the threshold for a Preliminary Objection and I will therefore proceed to determine the same.

17. The preliminary objection is premised on the grounds that the Application dated 10/05/2022 is res judicata. The principles applicable in res judicata are set out in section 7 of the Civil Procedure Act as follows:“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 can 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.”

18. On its part, the Black’s Law Dictionary 10th Edition defines “Res Judicata” in the following matters.“An issue that has been definitely settled by judicial decision … the three essentials are(1)an earlier decision on the issue,(2)a final Judgment on the merits and(3)the involvement of same parties, or parties in privity with the original parties…”

19. In determining whether a matter or suit is res judicata, the Court of Appeal in the case of the Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR, pronounced itself as follows:“[F] or the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;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.

20. The Court went further to state as follows:“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

21. From the foregoing, it is clear that for a matter to be termed res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same have been determined on merits by a court of competent jurisdiction. The doctrine of res judicata exists to protect parties from being endlessly dragged into litigation over the same issue or subject matter that has already been conclusively determined by another Court.

22. It is clear that the preliminary objection is targeted at prayer (2) of the application which is premised as follows:‘That there be interim orders of injunction restraining the Elgeyo Marakwet county land registrar from, registering any sub-division, transfer, charge or other dealing on respect of the land parcel known as Irong/Iten/248 pending the hearing and determination of the application herein inter-partes.”

23. It is also clear that in the present application dated 10/05/2022, the said prayer (2) is sought only in the “interim” and more importantly, only “pending the hearing and determination of the application herein inter partes”, In the earlier Application dated 8/03/2021 that was dismissed, a similar prayer was made but the same was made as a full substantive prayer “pending the hearing and determination of the intended appeal to the Court of Appeal …..”. The contexts and scenarios are therefore materially different.

24. Applying the principles set out earlier, I find that insofar as the said prayer (2) is sought only in the “interim” and only “pending the hearing and determination of the application herein inter partes”, the same is not a substantive prayer and therefore has no capacity to affect the entire Application. I believe that the said prayer (2) was basically meant for the duty Judge handling the Application at the ex parte certificate of urgency stage. The prayer will most likely have been long spent by the time that the Court will be fully seized of the substantive Application at the inter partes stage. Needless to state, the plea of res judicata against the prayer will be validly raised should, at the inter partes stage, the Petitioner seek to urge it further.

25. There is no doubt that the substantive prayer in the present application is prayer (3) which is premised on the following terms:“That the honourable court be pleased to review, set aside and/or vary the ruling and orders made by Hon. Lady Justice Hellen H. A. Omondi J on December 28, 2021 and delivered on 14th February 2022 and in its place there be an order allowing the Summons dated March 8, 2021 in its entirety.”

26. There is no doubt that the issue in respect to which the Petitioners are seeking a review is the prayer that one William Kosgei Chemjor be substituted into this matter in place of the 2nd Petitioner, Anna Teriki Kipsitet who died on 11/04/2020. I have perused the Ruling of Omondi J (as she then was) dated 28/12/2021 and delivered on her behalf by Nyakundi J on 14/02/2022 and note that truly, the ruling does not seem to have addressed this prayer for substitution. This therefore being the petitioner’s ground for seeking a review, and although brought after a considerably long time, I find that the Petitioners are on safe grounds and that the present application is competent and validly before the Court. There is no allegation made against this prayer as being res judicata.

27. The preliminary objection therefore fails.

Final Orders 28. In the premises, I issue the following ordersi.The preliminary objection dated 27/05/2022 is dismissed.ii.The parties shall now take directions on hearing of the substantive application dated 10/05/2022. iii.Costs shall be in the cause

DELIVERED, DATED AND SIGNED AT ELDORET THIS 17TH DAY OF NOVEMBER 2023WANANDA J.R. ANUROJUDGE