[2019] KEHC 5719 (KLR)
The court found that the applicant's claim to a portion of the estate land had already been addressed and determined in the ruling of 30/07/2018, specifically in paragraphs 34–44. The applicant had participated in the proceedings as a witness and produced his agreement, albeit untranslated, but did not lodge a...
Source-derived case information.
- Citation
- [2019] KEHC 5719 (KLR)
- Parties
- Applicant: Grace Kavini Musau; Respondent: Josephine Kavoo Nyangha; Respondent: Dickson Mwania Musau
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 20 of 2017
- Procedural Posture
- Probate and Administration Application / Ruling on Application to Set Aside/vary Distribution and for Leave to Lodge Protest
- Outcome
- application struck out as incompetent
- Judges
- CM Kariuki
- Legal Topics
- Succession of Estates, Distribution of Estate, Purchaser's Interest in Estate, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Kavini Musau
Applicant
Josephine Kavoo Nyangha
Respondent
Dickson Mwania Musau
Respondent
Procedural Posture
Probate and Administration Application / Ruling on Application to Set Aside/vary Distribution and for Leave to Lodge Protest
Legal Issues
- 1 Whether the applicant is entitled to have the ruling on distribution set aside or varied to allow lodging of a protest regarding a purchaser's interest in the estate.
- 2 Whether the matter is res judicata and the court is functus officio regarding the applicant's claim to a portion of the estate land.
Ratio Decidendi
The court found that the applicant's claim to a portion of the estate land had already been addressed and determined in the ruling of 30/07/2018, specifically in paragraphs 34–44. The applicant had participated in the proceedings as a witness and produced his agreement, albeit untranslated, but did not lodge a formal protest at the appropriate time. The court held that the matter was res judicata and that it was functus officio, having already made a finding on the alleged sale and the applicant's recourse. Consequently, the court lacked jurisdiction to revisit or re-hear the protest as sought by the applicant.
Court Disposition
application struck out as incompetent
Orders
- The application dated 27/11/2018 is struck out as incompetent.
- No orders as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HC P&A NO. 20 OF 2017
IN THE MATTER OF THE ESTATE OF MUSAU MAUNDU Alias MUSAU MAUNDU YUMBYA (DECEASED)
GRACE KAVINI MUSAU....................................................ADMINISTRATOR
-VERSUS-
JOSEPHINE KAVOO NYANGHA 5 OTHERS.........................PROTESTORS
RULING
1. By Summons dated 27/11/2018 the Applicant seek orders that the court’s Ruling on distribution dated 30/07/2018 and all consequential orders be stayed pending hearing and determination of the instant summons and same Ruling of 30/07/2018 be set aside or varied and Applicant be granted leave to lodge protest inter alia.
2. The Application is premised on the provisions of Article 40, 50(1) and 159 (2d) Constitution of Kenya, Section 47 LSA Cap 160 inter alia.
3. The same Application is based on grounds that the Applicant had bought a portion of suit land UKIA/UTAATI/1176 from the deceased but unfortunately he passed on before he could transfer same to him (Applicant).
4. He claims to be in active possession of the portion he bought from suit land. He confirms that during the hearing of the protest which led to the Order/Ruling of 30/07/2018 he testified as a witness and produced an agreement to show he had bought a portion of suit land though he had no protest of his own.
5. He says that due to lack of knowledge of procedure and error he produced an agreement in Kikamba language without translation.
6. Now he avers that his decision is to file protest to claim the portion he bought. He is fearful that the estate may be distributed before he gets his portion of land.
7. The Applicant has also sworn an Affidavit on 27/11/2018 which reiterates the above grounds. The Application is opposed by Dickson Mwania Musau via Affidavit he swore on 06/02/2019.
8. In a nutshell the Respondent the 3rd Protestor avers that the issue was determined vide paragraph 34 – 44 of the Ruling thus court functus officio.
9. In any event the Applicant was all aware of the matter and he even testified as a witness thus he squandered the opportunity to lodge his protest.
10. This court has read the Ruling of 30/07/2018 and particularly para. 34 – 44 and clearly finds that the matter is res juricata. A finding was already made in respect of the alleged sale of suit land. The court even stipulated the buyer’s recourse therein.
11. This court thus cannot re-hear a protest as suggested by the Applicant and thus makes the following orders;
(i) The Application is incompetent and thus struck out.
(ii) No orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKUENI THIS 31ST DAY OF MAY, 2019.
......................
C. KARIUKI
JUDGE