[2017] KEHC 2155 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 363 OF 1987

IN THE MATTER OF THE ESTATE OF MBUGUA MWITHUKIA (DECEASED)

FRIDAH MUTHONI KARANJA……………………….….1ST APPLICANT

AYUB KARANJA……………….……………………...…..2ND APPLICANT

VERSUS

ALICE NJERI WAWERU……………………………….1ST RESPONDENT

IBRAHIM MWITHUKIA WAWERU…..………….……2ND RESPONDENT

MOSES KAMAU WAWERU…………………………..3RD RESPONDENT

MARIAM WANGU WAWERU……..……………..……4TH RESPONDENT

RULING

1. The deceased Mbugua Mwithukia died on 21st December 1982. The grant of letters of administration intestate were issued to Mohammed Waweru Mwithukia (now deceased) on 13th August 1987 and confirmed on 11th December 1987. On 4th January 1988, Patrick Mwahuki Karanja (also deceased) applied for the revocation of the grant of letters of administration. He later died before prosecuting the application and was substituted by his wife Fridah Muthoni Karanja. The application is still pending before this court.

2. On 19th April 2017, the respondents filed a Preliminary Objection on the following grounds:-

a) That the application does not meet the threshold of Section 76 of the Law of Succession Act cap 160.

b) That the application is moot as the applicants may, if proved as genuine, be accommodated by way of rectification of grant.

c) That the delay in prosecuting the application is inordinately excessive.

d) That no protest or objection was ever preferred by the applicants.

e) That the alleged omitted beneficiaries can find redress in Review or Appeal.

f) That the application herein is bad in law under the doctrine of res judicata.

3. The Preliminary Objection is opposed by the applicants through the following grounds of opposition dated 27th June 2017:

a) That the application does meet the threshold of Section 76 of the Law of Succession Act as concerns revocation or annulment of grants.

b) That the application questions the legality of the grant which was obtained irregularly pursuant to deliberate concealment of material facts by the administrator.

c) That all parties to a dispute have the task of ensuring its early conclusion and delay cannot be blamed on one party only to the exclusion of the other.

d) That the application is already before court, which court has unfettered jurisdiction to (i) give directions, which it already has, and (ii) decide on appropriate remedies.

e) That the court has already given directions on the application and is the reason why the same was slated for hearing before the respondent halted progress by way of the present Preliminary Objection.

f) That the doctrine of res judicata does not apply and the application is properly in court.

g) That the preliminary objection lacks merit, is incompetent, is an abuse of the court process and is a clog to progress of the suit geared towards wasting more valuable time so as to keep the matter in further abeyance.

h) That this court is clothed with the necessary jurisdiction to handle this matter without undue regard to procedural technicalities.

4. The Preliminary Objection proceeded by way of viva voce evidence on 24th July 2017. During the hearing, Mr. Kagunda appeared for the respondents to prosecute the preliminary objection. The summary of his submissions is that: the matter is res judicata since the court already delivered its ruling on 29th July 1996; that assuming the application had merit, it has been brought under the wrong form since the objector was to apply to rectify the grant and not to have it revoked; that the grant was made in 1987 and thirty years later the objectors never raised any protests; that it has been 30 years since the grant was filed and as such the delay is inordinately excessive; and that there is no explanation given by the counsel or his client why it took 30 years to file the application.

5. Mr. Kinyua representing the objectors and opposing the Preliminary Objection submitted that: the application does meet the threshold of Section 76 of the Law of Succession Act as concerns revocation or annulment of grants on the grounds that the grant was obtained by concealment of material hence cannot be cured by way of rectification; that on the issue of the delay in prosecuting the application being inordinately excessive, the delay is explained by the back and forth between the court and the Council of Elders and is blamed on both parties; and that the determination of summons for revocation is still pending before court and as such the application cannot be said to be res judicata.

6. I have considered the submissions by both parties. In determining what constitutes a preliminary objection, it is now settled that a preliminary objection must raise pure points of law and not general grounds raised to oppose the application on its merits. The guiding case on Preliminary Objections is Mukisa Biscuit Manufacturing Co. Ltd –v- West End Distributors Co. Ltd [1969] EA 696 in which a preliminary objection as per law J.A was stated to be thus:-

“So far as I am 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 or refer the dispute to arbitration.’’

7. Looking at the Notice of Preliminary Objection filed by the respondents, I note that the question of whether the objectors’ application meets the threshold of Section 76 of the Law of Succession Act as concerns revocation or annulment of grants are matters which will require interrogation of evidence. Such matters which claim to be preliminary objection yet they bear factual aspects calling for proof, or seeks to advance evidence of their authentication are not, as a matter of legal principle, true preliminary objections which the court should allow to proceed.

8. On the issue of res judicata, I note the ruling of Justice Githinji of 8th October 1998 which directed that the application for revocation of grant be fixed for hearing before the judge dealing with Probate and Administration cases. The hearing having not been fixed and a determination arrived at, the matter cannot be said to be res judicata. From the foregoing, it is apparent that the preliminary objection is devoid of merit and is hereby dismissed with costs to the respondent.

Dated signed and delivered this 6th Day of October 2017

R. E. OUGO

JUDGE

In the presence of:

Mr. Mazera h/b for Mr. Kinyua for the Objector.

Ms Nyokabi Mweni h/b for Mr. Kagunda for the Respondents

Ms Charity Court clerk.