[2023] KEHC 22999 (KLR)
The court held that it would be improper to proceed with the confirmation of grant in respect of Plot 69B Mikinduri Market while an appeal on the ownership of the same property is pending before the Environment and Land Court. Proceeding would risk conflicting decisions by courts of equal status and violate the...
Source-derived case information.
- Citation
- [2023] KEHC 22999 (KLR)
- Parties
- Applicant: Matthew Gituma; Respondent: Cosmas Muriungi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 288 of 2000
- Procedural Posture
- Succession Cause / Ruling on Application for Confirmation of Grant
- Outcome
- Application for confirmation of grant held in abeyance pending determination of appeal in the Environment and Land Court.
- Judges
- EM Muriithi
- Legal Topics
- Confirmation of Grant, Ownership Dispute, Sub Judice, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Matthew Gituma
Applicant
Cosmas Muriungi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Grant
Legal Issues
- 1 Whether the High Court in succession proceedings can confirm a grant involving property whose ownership is under dispute and pending appeal before the Environment and Land Court.
- 2 Whether proceeding with confirmation of grant would violate the principles of sub judice and res judicata given the pending appeal on ownership.
- 3 Whether parallel proceedings on the same property ownership issue are permissible.
Ratio Decidendi
The court held that it would be improper to proceed with the confirmation of grant in respect of Plot 69B Mikinduri Market while an appeal on the ownership of the same property is pending before the Environment and Land Court. Proceeding would risk conflicting decisions by courts of equal status and violate the principles of sub judice and res judicata as set out in sections 6 and 7 of the Civil Procedure Act. The application for confirmation of grant must therefore be held in abeyance until the Environment and Land Court determines the pending appeal. The court refrained from making any findings on the merits of the ownership dispute to avoid prejudicing the appellate process.
Court Disposition
Application for confirmation of grant held in abeyance pending determination of appeal in the Environment and Land Court.
Orders
- The application for confirmation of grant is held in abeyance to await the determination of the appeal on the ownership of Plot 69B Mikinduri Market by the Environment and Land Court.
- The matter shall be mentioned for purposes of establishing whether the appeal has been concluded and for further directions as necessary and appropriate on 15/2/2024.
Full Case Text
Judgment text and source record
24 paragraphs
In re Estate of Luka Thambu Ritaugu (Deceased) (Succession Cause 288 of 2000) [2023] KEHC 22999 (KLR) (28 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22999 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 288 of 2000
EM Muriithi, J
September 28, 2023
In the matter of the Estate of Luka Thambu Ritaugu (Deceased)
Between
Matthew Gituma
Petitioner
and
Cosmas Muriungi
Respondent
Ruling
1. The Issue in dispute between the parties in this Cause concerns a parcel of land plot no. 69B Mikinduri Market, Meru, both the petitioner/applicant and the Respondent, respectively son and grandson of the deceased claiming an interest in the plot. The issue has been the subject of several proceedings both in this Cause and in the Environment and Land Court and now the primary question before the court is simple. Can the High Court as the succession court by way of succession proceedings confirm a grant in which a property which the subject of an ownership dispute pending hearing and determination before the Environment and Land Court on appeal from the Magistrate’s Court?
2. Coupled with this question is a corollary whether the Environment and Land Court being already seized of the appeal from the trial court on the ownership dispute, it would be proper in accordance with judicial policy to proceed with the application for confirmation of Grant for the distribution of the property along with other estate assets in a manner that may give rise to contradicting determination by two courts of equal status.
3. Is it not to mount parallel proceedings for the determination of the same question of the ownership of the suit property which has been determined at the first instance by the Environment and Land trial court and is pending hearing and determination before the appeal court. Is such proceeding nor barred by the principles of sub judice and res judicata under, respectively, sections 6 and 7 of the Civil Procedure Act, which in terms of section 89 of the Act applies to all civil proceedings?
4. To the extent that there is a judgment of the first instance trial court of the Environment and Land Court, the question of ownership of the plot 69B is res judicata, and to the extent that there is pending an appeal to the Environment and Land Court, it is sub judice and this court may not proceed to hear and determine a related question. The application for confirmation herein dated 29th November 2021 was filed on 30 November just a week before the Ruling of the Environment and Land Court of 8th December 2021.
5. The respectful view of the court is that the application for confirmation must await the determination of the appeal pending before Environment and land Court.
6. In order not to prejudice and embarrass the Environment and Land Court, this Court does not make any findings on the merits of the matter.
Orders 7. Accordingly, for the reasons set out above, this court makes the following orders:1. The application for Confirmation of Grant herein made to the petitioner is held in abeyance to await the determination of the appeal on the question of ownership of the suit property Plot 69B Mikinduri Market by the Environment and Land Court.2. The matter shall be mention for purposes of establishing whether the appeal has been concluded and for further directions as necessary and appropriate on 15/2/2024. 3.There shall be no order as to costs.
8Order accordingly.
DATED AND DELIVERED ON THIS 28THDAY OF SEPTEMBER, 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. J. Mwiti Advocate for the appellant.Respondent in person.