[2023] KEHC 26426 (KLR)

In re Estate of Mugo Wangai (Deceased) (Civil Appeal 18 of 2017) [2023] KEHC 26426 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26426 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 18 of 2017

FROO Olel, J

December 4, 2023

Between

Fredrick Mugweru Mugo

1st Appellant

Simon Wambugu Mugo

2nd Appellant

and

Danson Mute Mugo

1st Respondent

National Irrigation Board

2nd Respondent

(APPEAL FROM JUDGEMENT OF HON. D NYAMBOKE (RM) IN WANG’URU MISC SUCCESSION CAUSE.NO.316 OF 2016 DATED 7TH APRIL 2017)

Judgment

1. This appeal arises from the Ruling/order dated 7th April 2017 issued in Wang’uru Misc. Succession Cause No 316 of 2016 delivered by Hon D Nyaboke Sure (RM) where she dismissed the appellant’s application dated 9th September 2016 terming it as an abuse of the court process. The appellants had filed the said application dated 9th September 2016 and sought for orders that ;a.That the Honourable court be pleased to order that the status quo in regard to occupation of Rice Holding 227, Tebere Sectionbe maintained as it at the time of demise of the deceased, whereby both the applicants and the respondent were in possession of respective portions pending the hearing and determination of prayers 3,4,5 and 6 of the said application.b.That the Honourable court be pleased to order that the status quo in regard to the occupation of Rice Holding 227, Tebere Sectionbe maintained as it was at the time of the demise of the deceased, whereby both the applicants and the respondent were in possession of respective portions, pending the hearing and determination of prayers 4 , 5 and 6 of the said application.c.That the orders given on 8th December, 1995 in Wang’uru DM Misc, Succession cause No 26 of 1984 purporting to declare the respondent herein as the successor of rice Holding 227, Tabere Section be revoked and annulled on the grounds that the same were defective in substance and that grant was obtained fraudulently by making of a false statement or by the concealment from the court of somethings material to the case of the applicants herein.

2. The appellant’s application was supported by the grounds on the face of the said application and the supporting affidavit of the appellants dated 9th September 2016. It was deponed that late Mugo Wangai (deceased) died in 1984 and the appellants and the 1st Respondent herein were his surviving children. The deceased was a lawful tenant of rice holding 227, Tebere section measuring approximately four and half Acres and at the time of his demise, his wife and children were utilizing the rice holding and benefiting there from. In 1984, after his death, the 1st respondent commenced Wanguru DM Misc succession cause No 26 of 1984 through Mwea irrigation settlement scheme and on 8th February 1985 got an order that he is the sole successor of the rice holding. The same was challenged on the basis that the said proceedings were blatantly flawed and violated pertinent provisions of the succession Act, no affidavits were filed in the said proceedings, no gazettement was effected, the applicant herein and their sister Florence Wanjiru did not appear in court to give their consent and that the distribution of the estate to one heir was unlawful, unfair and discriminatory.

3. In 2002, the 2nd applicant herein, his mother JUliana Wanjiku Mugo and his brothers Wangai Mugo, Wachira Mugo and Humphrey Mwai Mugo filed an application dated 3rd June 2002 seeking to set side the orders issued on 8th February 1985 and further sought to have the rice settlement scheme distributed amongst all family members, as the 1st respondent was to hold the said license in trust for himself and other family members, but had neglected from doing so. The said application was dismissed on 8th August 2002 and the matter subsequently moved to the sub advisory committee of the National irrigation board, which on 15th April 2014 made an award sharing the suit parcel as follows; The 1st respondent Danson Mute Mugo was to get 2 acres, Fredrick Mugweru Mugo was to get 1. 5 acres and Simon Wambugu Mugo was to get 1 acre. After the said award the applicants and the respondent took possession of their respective demarcated portions and commenced utilization of the same.

4. The 1st respondent challenged the decision of the sub-advisory committee decision vide Kerugoya ELC JR No. 21 of 2014 and on 19th August 2016, the Court quashed the decision of the sub advisory committee for want of jurisdiction. The Court ordered the 2nd respondent to revert the rice holding to the position it was before the decision of the sub-advisory committee that is the 1st respondent declared as the successor. Thereafter the applicants filed the current application seeking to retain the status quo on the ground as the time the deceased died and also to revoke and/or cancel the orders made on 8th February 1985.

5. The 1st respondent did oppose this application vide his replying affidavit dated 23rd January 2017, where he deponed that the entire proceedings were misconceived and were an abuse of the process of the court on the basis that rice holding license were issued pursuant to the Irrigation Act Cap 347 laws of Kenya and the said suit parcel was not part of the estate of the deceased person capable to be administered in the manner provided for under the succession Act. The proceedings herein too were res judicata as the parties had entered into a consent and an order issued on 08. 02. 1985. The same issues had been litigated on by the parties and ruling dated 08. 08. 2002 by Hon M. Maundu (R.M) and also the ruling by Hon T. Mwangi (P.M) dated 05. 11. 2013 issued in favour of the 1st respondent.

6. Further the 1st respondent stated that he followed the right process and got the relevant license from National irrigation board, which had the power to issue and/or revoke a license under a rice holding scheme under provisions of the irrigation Act Cap 347 laws of Kenya and the same could not be revoked under the succession Act. The applicants therefore could not be given a second bite to the cherry as all issues raised had been previous dealt with on merit. The application was thus devoid of merit and ought to be dismissed. The 1st respondent also filed a preliminary objection raising the same issues of res judicata and the fact that rice holding No 227 Tebere section of the National irrigation board – was a license issued under provisions of the irrigation Act Cap 347 laws of Kenya and was not administered under Succession Act Cap 160 laws of Kenya but Irrigation Act Cap 347 laws of Kenya.

7. The trial magistrate considered the said application and the objections made and vide a ruling dated 7th April 2017 dismissed the application terming it as having no merit and an abuse of the court process. Dissatisfied by the said ruling, the appellants preferred this appeal and raised the following ground of appeal;a.That the learned trial magistrate erred in law and in fact in making a ruling against the weight of evidence.b.That the learned magistrate erred in law and in fact in disregarding the provisions of the law of Succession Act Cap 160 Laws of Kenya.c.That the learned trial magistrate erred in law and fact disregarding and failing to apply the authority of Kerugoya High Court Civil Appeal No. 181 of 2013; Ngotho Njiraine versus Ngari Njiraini & Another which was binding upon her.d.That the learned trial magistrate erred in law and in fact in failing to dispense substantive justice to the parties.

Appellant Submissions 8. The Appellants in their submissions raised the following issues;a.Whether the honourable court had jurisdiction to hear and determine the application for revocation of grant herein.b.Whether the appellants meet the threshold for the revocation of grant.c.Who should bear the cost of the suit.

9. On whether this honourable court has jurisdiction to hear and determine the application for revocation of grant herein it was submitted that it is trite law that jurisdiction is everything and without it a court of law cannot be seen to administer justice to the parties in dispute. It was evident that the parties had appeared before different courts and the 1st respondent objected to the said proceedings on the basis that the same were res judicata due to the determination made in Kerugoya ELC No. 21 of 2014.

10. It was submitted that the issue for determination in Kerugoya ELC No 21 of 2014, which were judicial review proceedings, was whether the sub advisory committee had the jurisdiction to allocate the appellants herein a portion of the suit parcel and it was found that the sub advisory committee lacked jurisdiction to do so. The suit parcel was thus reverted back to the 1st respondent herein. It was clear that the judgement did not bring out the issues raised in the application for revocation of grant and therefore this court had jurisdiction to handle this appeal. Reliance was placed on section 47 of the Law of Succession Act which gives the High Court Jurisdiction to entertain disputes under the Succession Act.

11. On the issue as to whether the appellants meet the threshold for the revocation of grant, it was submitted that in his sworn testimony before the trial court in Wan’guru, the 1st respondent had stated that the family had unanimously agreed that he should succeed the rice field yet not all his brothers were present in court. Clearly the consent of all the beneficiaries was not given nor did the said beneficiaries participate in the said proceedings and/or were not given a chance to be heard. The said proceedings contravened and were carried out contrary to the provision of Article 50 of the Constitution of Kenya 2010 and this court was therefore urged to find that the grant confirmed in favour of the 1st respondent was un-procedurally issued and it ought to be revoked and/or annulled.

12. Further the appellants had sought to have the said proceedings set aside as they were commenced under Regulation No. 7 (1) of the irrigation (National irrigation scheme) Regulation cap 347(1977), but since the Law of Succession was enacted on 1st July 1981, this should have been the applicable law. Reliance was placed in the case of Ngotho Njiraini v Ngari Njiriani & Another [2016] EKLR where it was held that Regulation No. 7(1) of irrigation (National irrigation scheme) regulation, Cap 347 (1977) was subject to the Law of succession Act. It was submitted that section 2 of the law of succession provided that the provisions of the said Act shall apply to all cases of intestate and testamentary succession to the estate of deceased persons dying after its commencement and that section 35 of the law of succession Act should have been the applicable law. It was only prudent and equitable that all the beneficiaries should benefit from the deceased’s existing estate. The finding and proceedings of the lower court at Wang’uru were thus fatally defective as they violated clear and pertinent provisions of the law of succession Act. Reliance was placed on Re Estate of John Musambayi Katumanga Deceased [2014] EKLR.

13. The appellants placed further reliance on section 76 of the law of succession Act which outlined factors that may lead to revocation of grant and one of the factors was that grant could be revoked, if the proceedings to obtain the grant were defective in substance. Reliance was placed on the case of Francis Kinyua Maringa & Another v Lydia Wanjiku Maringa; Christine Wanjiru Maringa & 6 others (interested) parties [2018] eKLR where it was held that failure to disclose to court matters which were material to making of the grant was sufficient ground for this court to issue an order that the grant be revoked. It was clear that the lower court proceedings that led to the confirmation of the grant were defective, fraudulent, irregular and unlawful as they did not adhere to the rules of natural justice and the court was urged to revoke the grant that was issued to the 1st respondent.

14. The appellants submitted that they had proved a prima facie case against the respondents and prayed that this appeal be allowed as prayed and that the said grant be revoked to enable all the parties to file a proper succession cause and allow the deceased’s estate to be distributed as per the provisions of the law of succession Act.

Respondent’s Submissions 15. The 1st Respondent submitted that the issues for determination were;i.Whether a rice holding being a land within a National Irrigation Scheme is capable of constituting a private / free property which can form part of estate of the deceased person thus capable of being succeeded as per the provisions of the law of succession Act.ii.Secondly which was the applicable law that governed a rice holding and upon demise of a licensee which law is applicable? Did the court orders dated 8. 2.1985 declaring the respondent as the lawful successor of rice holding No. 227 unit Tebere section constitute a grant capable of being revoked or annulled pursuant to section 76 of the law of succession Act.iii.Did the Court have the requisite jurisdiction to entertain the application for revocation and share out the rice holding amongst the appellants, and/or are the provisions of the Irrigation regulation’s 1977 subject to the law of succession act.iv.Who should bear the cost?

16. It was submitted that this the appeal lacks merit because the orders of 08. 02. 1985 was not a grant issued within the relevant provisions of the law of Succession Act and thus there was no grant in these proceedings capable of being revoked or annulled pursuant to the provisions of section 76 of the law of succession Act. The land in question was a rice holding land within a National irrigation Scheme, and the National irrigation board had the power to create and revoke licenses within the scheme, determine the member of settlers within the scheme and control/regulate the manner of operations within the scheme. The relationship that governs the National Irrigation board and the tenants within the said rice scheme was that of a licensor and licensee and that a rice holding within the scheme therefore does not form part of free property of a deceased person capable of being subjected to the Law of succession Act.

17. The 1st respondent further submitted that the law does work retrospectively. The rice holding was allocated to the deceased in 1958 and it has all along been governed by the provisions of Irrigation Act, Cap 347 and Irrigation (National Irrigation scheme) Regulations 1977, which provisions were also used to grant the 1st respondent a license, as that was the applicable law. If indeed the law makers intended to have succession Act apply to land within the National Irrigation Scheme, they would have expressly included the scheme under section 99 and 100 of the Law of succession Act.

18. It was hence submitted that the court lacked jurisdiction to entertain the summons for revocation and annulment of grant as filed for sharing out of the rice holding under the scheme was a statutory mandate vested in the National Irrigation Board and its successor the national irrigation Authority Created by the new Irrigation Act No. 14 0f 2019. Reliance was placed in the case of Owners of motor vessel Lilian S vs Caltex Kenya Ltd 1989 KLR 1 , Kerugoya ELC JR No 21 of 2014 Republic vs National Irrigation Board 7 others exparte Danson Mute Mugo and Kerugoya ELC No 114 of 2017 James Kigoro Njuguna vs Mary wagatwe wanyeki

Determination 19. A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari Vs Purushottam Tiwari (Deceased) by L.Rs (2001) 3 SCC 179.

20. Further this being first Appellate Court, it must itself also weigh conflicting evidence and draw its own conclusion. See Shantilal M. Ruwala-Vrs-R (1975) EA 57. “Where it was stated that it is not the function of the first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower Court finding and conclusion, it must make its own findings and draw its own conclusions only then can it decide whether the magistrate’s findings should be supported in doing so, it should make allowance for the fact that the trial Court has made the advantage of hearing and seeing the witnesses.”

21. I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions. This appeal raises two issues namelya.Whether this Court has jurisdiction to hear and determine the application for revocation of grant.b.Whether the threshold for revocation of grant has been met. vis a vis provisions of the succession Act & provisions of the Irrigation Act Cap 347 and regulations made there under.c.Who should bear costs of this appeal?

Whether this court has jurisdiction to hear and determine the application for revocation of grant. 22. The undisputed fact in this appeal is that the 1st respondent did move Court under Wang’uru D.M Succession Misc cause No 26 of 1984 and on 8th February 1985, in the presence of some of his family members and with their consent was appointed as the successor of rice holding No 227 Tebere Section after which he was granted a license by the 2nd respondent herein to use the said parcel of land within Mwea rice scheme. The appellants and their late mother one Juliana Wanjiku Mugo moved court in June 2002 and sought to have the said orders issued on 8th February 1985 be set aside, the same be reviewed and an order do issue that the said rice holding be shared equally amongst the parties herein.

23. The application dated 3rd June 2002 was heard on merit and dismissed vide a ruling dated 08. 08. 2002. The trial court did find that the appellants had other parcels of land and had come to court about 17 years late, which was a long time. On 05. 11. 2013, the appellants again moved court in the said succession cause and sought to have the matter referred to the advisory committee-Mwea irrigation scheme for arbitration. The court perused its record and confirmed that a determination had been made and no appeal was filed to challenge the same. The court was therefore functus official and directed that the said succession file be marked as closed.

24. The appellants and other family members did not give up and took the dispute to their local chief of Nyangati Location, who after holding a deliberation over this matter on 13th January 2014, recommended that the suit property be shared amongst the applicant and the 1st Respondent. The 1st respondent was to get 2 acres, the 1st appellant was to get 1. 5 acres and the 2nd appellant was to get 1 acre. Acting on the recommendations of the chief, the 2nd respondents sub advisory committee meet on 15th April 2014 and up held the chief’s recommendations to have the suit parcel sub divided into three portions.

25. The 1st respondent being aggrieved by the said finding/ruling of the sub advisory committee moved court and filed Kerugoya ELC (JR) No 21 of 2014 seeking to quash the said findings. The said application too was heard on merit and an order of certiorari issued quashing the 2nd respondents subcommittee recommendation made on 15th April 2014 and further issued an order of Madamaus compelling the 2nd respondent to restore the entire suit property to the 1st respondents name as per the orders issued on 8th February 1985 in Wang’uru Misc. Succession cause No 26 of 1984. It is on the basis of this litigation history that the 1st respondents advocate raised an objection that the application as filed was res judicata and constituted an abuse of the process of this court, which objection was upheld by the trial court.

26. Section 7 of the Civil Procedure Act, 2010 provides as hereunder:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

27. It is now old hat that the said doctrine applies to both suits and applications as was held in Abok James Odera vs. John Patrick Machira Civil Application No. Nai. 49 of 2001. However, to rely on the defence of res judicata there must be:SUBPARA (i).a previous suit in which the matter was in issue;(ii).the parties were the same or litigating under the same title;(iii).a competent court heard the matter in issue;(iv).the issue had been raised once again in a fresh suit.

28. As regards the rationale of the doctrine of res judicata, reliance was placed on the decision of the Court of Appeal in Independent Electoral & Boundaries Commission –vs- Maina Kiai & 5 Others (2017) eKLR.“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

29. In the Maina Kiai case (supra), the Court quoted with approval the Indian Supreme Court in the case of Lal Chand vs. Radha Kishan, AIR 1977 SC 789 where it was stated;“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.”

30. In Gurbachan Singh Kalsi vs. Yowani Ekori Civil Appeal No. 62 of 1958 the former East African Court of Appeal stated as follows:“Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time…No more actions than one can be brought for the same cause of action and the principle is that where there is but one cause of action, damages must be assessed once and for all…A cause of action is every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

31. Unfortunately for the appellants, their summons for revocation of grant dated 9th September 2016, is in all four similar to the application filed in court dated 3rd June 2002, where they had also sought to have the orders issued on 8th February 1985 be set aside and a fresh order be made to have the suit parcel rice holding No 227 to be shared equally amongst the parties. The said application was dismissed on 08. 08. 2002 and no appeal was ever filed as against the said ruling. Accordingly, this court finds as a fact that; there was a previous suit where the same question were in contention, the parties were the same and/or were litigating under the same title, the matter was hear before a court of competent jurisdiction and the same issues canvassed in the previous application dated 3rd June 1985 have been raised afresh in the application dated 9th September 2016, which was dismissed.

32. The parties herein are all family members. Even though the 1st appellant was not a party in the earlier applications filed, the same too were made for his benefit. Mere addition of parties in a subsequent suit does not necessarily render the doctrine of res judicata inapplicable, especially where the added party peg his claim under the same title as the parties in the earlier suit. Under explanation 6 to section 7 of the Civil Procedure Act, where persons litigate bona fide in respect of a public right claimed in common by themselves and others, all persons interested in such right shall, for the purposes of the section, shall be deemed to claim under the persons so litigating.

33. Accordingly, the trial court was right in holding that it did not have jurisdiction to reverse Justice Olao order and/or the ruling of the court dated 08. 08. 2002. Further equity, justice and good conscience require that a party who has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. There must be an end to litigation.

34. Having found that this summons for revocation of grant dated 9th September 2016 was res judicata and the court lacked jurisdiction to determine the same, it is needless in these proceedings to make any other determination on whether there is proper basis for revocation of grant vis a vis provisions of the succession Act & provisions of the Irrigation Act Cap 347 and regulations made there under.

Disposition 35. The upshot is this that this appeal lacks Merit and the same is dismissed with costs to the 1st respondent.

36. The 1st respondent costs is hereby assessed at Ksh.200,000/= all inclusive.

37. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 4TH DAY OF DECEMBER 2023. FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 4TH DAY OF DECEMBER, 2023. In the presence of;No appearance for AppellantNo appearance for RespondentSusan Court Assistant