[2021] KEHC 5204 (KLR)
The court found that the applicants' eviction from the suit property was the subject of a previous suit (MERU ELC NO. 41 OF 2020), in which their challenge had already been dismissed. The issues raised in the present application were directly and substantially the same as those in the earlier suit, thus invoking the...
Source-derived case information.
- Citation
- [2021] KEHC 5204 (KLR)
- Parties
- Applicant: Celina Nkirina Samuel; Applicant: Daniel Kirimi Mutua; Respondent: Andrew Muriuki M’uthaka; Respondent: Patrick Kamengu; Respondent: John Mutuma Robert; Respondent: Susan Nkatha; Respondent: David Mugambi; Respondent: Lucy Kamami; Respondent: Fredrick Kaberia
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 308 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Joinder as Interested Parties and Challenge to Eviction Order
- Outcome
- application dismissed with costs to the respondents
- Judges
- TW Cherere
- Legal Topics
- Joinder of Parties, Sub Judice Rule, Eviction Orders, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Celina Nkirina Samuel
Applicant
Daniel Kirimi Mutua
Applicant
Andrew Muriuki M’uthaka
Respondent
Patrick Kamengu
Respondent
John Mutuma Robert
Respondent
Susan Nkatha
Respondent
David Mugambi
Respondent
Lucy Kamami
Respondent
Fredrick Kaberia
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Joinder as Interested Parties and Challenge to Eviction Order
Legal Issues
- 1 Whether the applicants should be enjoined as interested parties in the succession cause after eviction orders were issued against them without a hearing.
- 2 Whether the application is barred by the sub judice rule due to a similar matter pending or determined in another court.
- 3 Whether the applicants, not being beneficiaries of the estate, have any right to protection under the Law of Succession Act.
Ratio Decidendi
The court found that the applicants' eviction from the suit property was the subject of a previous suit (MERU ELC NO. 41 OF 2020), in which their challenge had already been dismissed. The issues raised in the present application were directly and substantially the same as those in the earlier suit, thus invoking the sub judice rule under Section 6 of the Civil Procedure Act. The court further held that the applicants were not beneficiaries of the deceased's estate and therefore had no right to seek protection under the Law of Succession Act. Their attempt to re-litigate the matter in the succession cause, after losing in the Environment and Land Court, amounted to an abuse of the court...
Court Disposition
application dismissed with costs to the respondents
Orders
- The summons dated 16th February, 2021 is dismissed with costs to the Objectors/Respondents.
Full Case Text
Judgment text and source record
82 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT KENYAAT MERU
(CORAM: CHERERE-J)
SUCCESSION CAUSE NO 308 OF 2010
IN THE MATTER OF THE ESTATE OF M’IMIRONGO M’UTHAKA (DECEASED)
BETWEEN
ANDREW MURIUKI M’UTHAKA.............................................................1ST PETITIONER
PATRICK KAMENGU..................................................................................2ND PETITIONER
JOHN MUTUMA ROBERT.........................................................................3RD PETITIONER
AND
SUSAN NKATHA.............................................................................................1ST OBJECTOR
DAVID MUGAMBI.........................................................................................2ND OBJECTOR
LUCY KAMAMI.............................................................................................3RD OBJECTOR
FREDRICK KABERIA..................................................................................4TH OBJECTOR
AND
IN THE MATTER OF AN APPLICATION
BY
CELINA NKIRINA SAMUEL.......1ST APPLICANT/ INTENDED INTERESTED PARTY
DANIEL KIRIMI MUTUA...........2ND APPLICANT/ INTENDED INTERESTED PARTY
RULING
Introduction
1. By a Certificate of Confirmation of Grant dated 14th February, 2019, deceased’s estate was distributed as follows:
1) Kaura Robert Ithima/Antuambui/5565(0. 05 Ha)
2) Judy Robert Ithima/Antuambui/1429(0. 04 Ha)
3) Charles Robert Ithima/Antuambui/3012(0. 07 Ha) (To Spouse and Children)
4) John Mutuma & Julius Ng’olua Ithima/Antuambui/5563(0. 11 Ha)
5) Alexander Mithika & Isaiah Muriki Ithima/Antuambui/3012(0. 23 Ha
6) Jacinta Kendi Robert Ithima/Antuambui/5596(0. 08 Ha)
7) Lucy Kawira Robert Ithima/Antuambui/1239(0. 04 Ha)
8) Rosaline Kinya Ithima/Antuambui/1226(0. 04 Ha)
9) Mary Mwendwa Ithima/Antuambui/1224(0. 07 Ha)
10) Lucy Kamami Ithima/Antuambui/1212(0. 04 Ha)
11) Fredrick Kaberia Ithima/Antuambui/1451(0. 03 Ha)
12) Susan Nkatha Ithima/Antuambui/1296(0. 099 Ha)
13) David Mugambi Ithima/Antuambui/1295(0. 03 Ha)
14) Silveria Kathoni Ithima/Antuambui/1286(0. 07 Ha) (Or her survivors to share equally)
15) Beatrice Robert Ithima/Antuambui/1257(0. 04 Ha) (Or her survivors to share equally)
16) Teresia Tirindi Ithima/Antuambui/3187(0. 81 Ha)
17) Ithima/Antuambui/3057 (3. 00 Ha) to be shared equally among deceased person’s sons from 1st and 3rd house and where deceased those present to hold in trust for the children.
i. Charles Gitongo (Deceased)
ii. Patrick Kamenchu
iii. Joseph Kinyua (Deceased)
iv. Isaiah Muriuki (Deceased)
v. John Mutuma
vi. Mark Ng’olua (Deceased)
18) Ithima/Antuambui/3057 (3. 00 Ha) to be shared equally among deceased person’s sons from the 3 houses
i. Charles Gitongo (Deceased)
ii. Patrick Kamenchu
iii. Joseph Kinyua(Deceased)
iv. Isaiah Muriuki(Deceased
v. John Mutuma
vi. Mark Ng’olua(Deceased)
vii. Tirindi Robert
19) Plot at Laare Market jointly to
i. Terisia Kainda
ii. Tirindi Robert
iii. Susan Nkatha
iv. Lucy Kamami
20) The shares are to go to the nominees as per the records in the institutions where they are held, otherwise if no nominees then they shall be distributed equally amongst beneficiaries.
21) Monies held at different banks in the names of the deceased should be shared equally among the deceased persons’ children and surviving widow upon establishing particulars of the account and banks.
2. By chambers summons dated 09th December, 2019, Susan Nkatha (1st Objector) applied to have Daniel Gitonga Mutua and Gitonga evicted from Plot at Laare Market so that it could be distributed to her and 4 others as ordered by the court.
3. By a ruling dated 27th April, 2020, the application was allowed on the grounds that the persons sought to be evicted are not beneficiaries of the estate of the deceased and it had not been shown that the court gave them authority to occupy the property in question.
4. By summons dated 16th February, 2021, the Applicants seek to be enjoined as interested parties’ on the ground that an order for their eviction was issued without affording them a hearing. The 1st Applicant has exhibited a lease agreement dated 01. 01. 2018 between her and one Martha Wanja Gitonga whereas the 2nd Applicant has exhibited a lease agreement dated 01. 03. 2017 between her and one Patrick Kamenchu Robert.
5. Susan Nkatha (1st Objector) by her replying affidavit avers that notices dated 05. 11. 2019 were issued to the Applicants requiring them to enter into lease agreements with the beneficiaries of the suit property but Applicants ignored and only moved to court on 18th February, 2021 long after they were evicted on 02. 09. 2020 and the suit premises leased by the rightful heirs.
6. The Respondent faults the Applicants for filing this application after an application filed in MERU ELC NO. 41 OF 2020challenging their eviction was dismissed on 14th December, 2020.
Analysis and determination
7. I have considered the application in the light of the affidavits on record.
8. It is not in dispute that the subject matter of this application which is the eviction of the Applicants from the suit property is also the subject matter inMERU ELC NO. 41 OF 2020.
9. The sub judice rule is codified in Section 6 of the Civil Procedure Act, (cap 21) as follows:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same time, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
10. The sub-judicerule is meant to prevent courts of concurrent jurisdiction from contemporaneously entertaining trial of two parallel suits in respect of the same subject matter. For it to apply, it is necessary that issues in the subsequent suit be also directly and/or substantially the same issues in the other suit. The remedies sought should also broadly be similar.
11. It is worthy to note that the Applicants filed this application after they lost a similar application in MERU ELC NO. 41 OF 2020. This case is a clear repudiation and negation of the salutary aims of the sub-judicebar.
12. This court declines to allow the Applicants to improperly and impermissibly re-litigate on a matter pending before another court.
13. Further to the foregoing, Applicants are not beneficiaries of the estate of the deceased but intermeddlers with no right of protection under the Law of Succession Act.
14. In the end, I find that the Summons dated 16th February, 2021 is an abuse of the court process and the same is dismissed with costs to the Objectors/Respondents.
DATED AT MERU THIS 15TH DAY OF JULY 2021
T. W. CHERERE
JUDGE
Court Assistant -Morris Kinoti
For Applicants - Mr. Kimani for Macharia Kimani Advocates
For Petitioners - N/A for Kobia Michubu & Co. Advocates
For Objectors - Ms. Mbumbunya for B.G.Kariuki & Co. Advocates