[2022] KEHC 9905 (KLR)

In re Estate of M'rwito Manga alias Chabari Manga (Deceased) (Succession Cause 4 of 1994) [2022] KEHC 9905 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9905 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 4 of 1994

TW Cherere, J

July 7, 2022

IN THE MATTER OF THE ESTATE OF M’RWITO MANGA ALIAS CHABARI MANGA (DECEASED)

Between

Peterson Kobia

Administrator

and

Jediel Muthuri

Objector

and

Patrick Mutai M’rwito

Interested Party

Cecilia Gaiti M’rwito

Interested Party

Ruling

1. By summons dated June 21, 2021, Applicants seek orders that:i.The Honourable Court be pleased to set aside proceedings and judgment delivered on June 16, 2011and revoke the confirmed grant issued on December 15, 1994 and confirmed on July 27, 2005 and appoint Interested Parties as administrators of deceased’s estate.ii.The Honourable Court be pleased to reopen the matter and have the interested parties recognized as children of the deceased entitled to the estateiii.Costs be borne by the Petitioner

2. The summons is supported by an affidavit sworn by the 2nd Applicant on 21st June, 2021 in which she avers that she and her siblings were excluded from the estate of the deceased who is their father.

3. Respondent opposed the application by his affidavit sworn on 13th July, 2021`in which he avers that the application is brought 10 years after the court by a judgment dated 16th June, 2021 dismissed a similar application brought on the same grounds and on their behalf by the Objector.

4. By a further affidavit sworn on -3rd March, 2022, 2nd Applicant avers that Applicants were not aware of the proceedings undertaken by the Objector.

Analysis and determination 5. I have considered the summons dated in the light of the affidavits on record, the submission filed on behalf of the parties and previous court orders issued in this matter.

6. It is on record that a grant of representation was issued on 05th December, 1994. While the same was pending confirmation, the Objector Jediel Muthuri filed an objection and cross-application. Petitioner raised an objection that the objection was filed outside the period fixed in the Gazette Notice and that Objector had not filed an answer to the Petition. The objection was upheld by Sitati J (as she then was) by a ruling dated 27th May, 2005.

7. Subsequently Objector filed another application dated 08th August, 2005, seeking orders among others revocation of the grant issued on 15th December, 1994 and confirmed on 27th July, 2005.

8. The application was heard interpartes and by a judgment dated 16th June, 2021, Lessit J (as she then was) ruled that the Objector had failed to prove that his mother Charity Njiru was wife of deceased and that Jediel Muthuri (Objector) and his siblings Patrick Mutai and Cecilia Gaiti were children of the deceased.

9. Upon delivery of the judgment, Objector filed a Notice of Appeal dated 20th June, 2011 and since no appeal was filed, the Court of Appeal by an order dated 19th May, 2021 issued in Harriet Nkuene Mutuairandu v Jediel Muthuri [2021] eKLR marked the Notice of Appeal as withdrawn.

10. Respondent contends that this application is res judicata similar issues having been determined.

11. The doctrine of res judicata is set out in Section 7 of the Civil Procedure Act. The doctrine ousts the jurisdiction of a court to try any suit or issue which had been finally determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title.

12. A close reading of Section 7 of the Act reveals that for the bar of res judicata to be effectively raised and upheld, the party raising it must satisfy the doctrine’s five essential elements which are stipulated in conjunctive as opposed to disjunctive terms. The doctrine will apply only if it is proved that:a.The suit or issue raised was directly and substantially in issue in the former suit.b.That the former suit was between the same party or parties under whom they or any of them claimc.That those parties were litigating under the same titled.That the issue in question was heard and finally determined in the former suite.That the court which heard and determined the issue was competent to try both the suit in which the issue was raised and the subsequent suit.

13. The Court of appeal in the case of William Koross (Legal personal Representative of Elijah C.A. Koross) v Hezekiah Kiptoo Komen & 4 others [2015] eKLR addressed the issue of res judicata and stated as follows:“The philosophy behind the principle of res judicata is that there has to be finality. Litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives in. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.………………………..”

14. In yet another case, the Court of Appeal in Kenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] eKLR cited with approval the decision inLal Chand v Radha Kishan, AIR 1977 SC 789 where it was stated that;“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue.The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit.”

15. The Applicants’ summons is based on the grounds that they are children of the deceased and were not provided for. As clearly pointed out herein above, Lessit J (as she then was) by a judgment dated 16th June, 2021 ruled that the Objector had failed to prove that his mother Charity Njiru was wife of deceased and that Jediel Muthuri (Objector) and his siblings Patrick Mutai (1st Applicant) and Cecilia Gaiti (2nd Applicant) were children of the deceased.

16. Most unfortunately, summons dated 21st June, 2021 appears to be a repudiation and negation of the salutary aims of the res judicata bar. The issues concerning the beneficiaries of the deceased and distribution of deceased’s estate raised in the Notice of Motion dated 02nd December, 2008 were litigated upon by the Objector on his own behalf and on behalf of his mother and siblings and a judgment rendered.

17. I have considered the 2nd Applicant’s contention that Applicants were not aware of the proceedings prosecuted by the Objector and I am not persuaded for the reason that the summons dated 24th June, 2011 in which Objector applied for stay of execution of the impugned judgment is supported by among others the Applicants’ identity cards. Applicants have not demonstrated that the identity cards were obtained for any other purpose other than to support that application and an inference is therefore made they were aware of the impugned judgment on or around June, 2011 which was the same month that it was rendered.

18. By seeking an order to revocation of the grant issued on 15th December,1994 and confirmed on 27th July, 2005 and recognition of Applicants as children of the deceased, I understand the Applicants to ask this court to take a different view from the previous decision contained in the judgment dated 16th June, 2021 by Lessit J (as she then was).

19. That decision has not been appealed against and remains valid. The court declines the invitation to revoke the grant in this matter or to recognize applicants as children of the deceased for to do so would amount to sitting on appeal in the judgment dated 16th June, 2021 by Lessit J (as she then was) which jurisdiction this court does not possess.

20. All litigation must sooner than later, come to an end and its conclusion must have a finality. A matter cannot be simply because a litigant is of the view that the decision should have been different or certain weight ought to have been given to a particular piece of evidence. (See Karanja v Ndirangu & another(Civil Application 5 of 2021) [2021] KECA 57 (KLR) (Civ) (8 October 2021) (Ruling)).

21. Consequently, and for the reasons given in the analysis above, the summons dated 21st June, 2021 is considered and found to have no merit and it is dismissed with costs to the Administrator/Respondent.

DATED AT MERU THIS 07TH DAY OF JULY 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicants - Ms. Kimotho for Gichunge Muthuri & Co. AdvocatesFor Objector - M/s Charles Kariuki & Kiome Associates AdvocatesFor Administrator/Respondent- Ms. Mbogo for Murango Mwenda & Co. Advocates