[2020] KEHC 9452 (KLR)
The court found that the estate of Macharia Njuguna had already been the subject of Succession Cause No. 17 of 1978, in which the District Magistrate's Court determined the heirs and distributed the estate according to Kikuyu customary law. As such, the present citation seeking letters of administration intestate...
Source-derived case information.
- Citation
- [2020] KEHC 9452 (KLR)
- Parties
- Applicant: Michael Maina Muiru; Applicant: Susan Wambui Muiru; Respondent: Stanley Muiru Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 781 of 2015
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- citation dismissed; preliminary objection sustained with costs
- Judges
- AO Muchelule, AN Ongeri
- Legal Topics
- Succession of Estates, Res Judicata, Customary Law Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Maina Muiru
Applicant
Susan Wambui Muiru
Applicant
Stanley Muiru Njuguna
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the citation for letters of administration intestate can be sustained where the estate has already been distributed by a competent court.
- 2 Whether the matter is res judicata under section 7 of the Civil Procedure Act.
- 3 Whether the remedy of revocation of grant under section 76 of the Law of Succession Act is available where the deceased died before the Act came into operation.
Ratio Decidendi
The court found that the estate of Macharia Njuguna had already been the subject of Succession Cause No. 17 of 1978, in which the District Magistrate's Court determined the heirs and distributed the estate according to Kikuyu customary law. As such, the present citation seeking letters of administration intestate was barred by the doctrine of res judicata under section 7 of the Civil Procedure Act. The applicants had not sought revocation of the grant, and in any event, such remedy was unavailable because the deceased died before the Law of Succession Act came into force. The preliminary objection raised by the citees was therefore sustained, and the citation dismissed with costs.
Court Disposition
citation dismissed; preliminary objection sustained with costs
Orders
- The citation is dismissed with costs.
- The preliminary objection is sustained with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 781 OF 2015
IN THE MATTER OF THE ESTATE OF MACHARIA NJUGUNA (DECEASED)
MICHAEL MAINA MUIRU................................................1ST APPLICANT
SUSAN WAMBUI MUIRU..................................................2ND APPLICANT
VERSES
STANLEY MUIRU NJUGUNA..............................................RESPONDENT
RULING
1. It would appear that, following the death of the deceased Macharia Njuguna on 26th December 1974, there was filed Succession Cause No. 17 of 1978 at the District Magistrate Nairobi in which his estate comprised in Dagoretti/Riruta/320 and Dagoretti/Riruta/T.143 was shared out to the beneficiaries.
2. This citation taken out by Michael Maina Muiru (the citor) against the citees Eliud Njuguna, Edward Waithaka, Wambui Muiru, Njuguna Muiru, Thairu Muiru, Simon Waithaka Muiru, Wanjiru Gathoni Muiru, Kimuhu Muiru, Wambui Muiru, Mungai Muiru, Wamaitha Muiru and Wanjiku Muiru asking them to accept or refuse letters of administration intestate in respect of the estate of the deceased cannot be sustained. Neither the citees nor the citor can file another petition in respect of the estate of the deceased. The matter is res judicata under section 7 of the Civil Procedure Act. The court cannot repeat itself in this matter which was already been decided by a competent court (John Florence Maritime Services Limited and Another –v- Cabinet Secretary for Transport and Infrastructure and 2 others [2015]eKLR). The District Magistrate’s Court has already heard the matter and issued the relevant certificate enabling the sharing of the estate of the deceased.
3. I am mindful of the fact that the citor has not sought the revocation of the grant that was issued on this matter. I am also alive to the fact that the deceased died before the Law of Succession Act (Cap. 160) came into operation. (In Re Estate of Nduati Mbuthia (Deceased)[2015] eKLR).The remedy to revocation under section 76 of the Act would not be available to the citor. The lower court was called upon to determine the heirs of the deceased under the Kikuyu customary law, and it determined.
4. The preliminary objection taken out by the citees on 11th March 2019 is sustained. The citation is dismissed with costs, and the objection sustained with costs.
DATED and SIGNED at NAIROBI this 27TH day of FEBRUARY, 2020.
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 2ND MARCH, 2020.
A.N. ONGERI
JUDGE