[2019] KEHC 7361 (KLR)
The court found that the application for revocation of grant was improperly seeking to re-litigate issues already determined after a full trial in the judgment of 28th September, 2018. The applicant, having been a party to those proceedings, could not use the present application to challenge the outcome or findings...
Source-derived case information.
- Citation
- [2019] KEHC 7361 (KLR)
- Parties
- Applicant: Gerald Mungatia; Respondent: Dominic Mutua Nkumari
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 345 of 2003
- Procedural Posture
- Succession Cause / Judgment on Summons for Revocation of Grant
- Outcome
- application dismissed with costs
- Judges
- A Mabeya
- Legal Topics
- Succession, Revocation of Grant, Functus Officio, Probate and Administration, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerald Mungatia
Applicant
Dominic Mutua Nkumari
Respondent
Procedural Posture
Succession Cause / Judgment on Summons for Revocation of Grant
Legal Issues
- 1 Whether the application for revocation of grant is properly before the court.
- 2 Whether the application amounts to an appeal against the judgment of 28th September, 2018.
- 3 Whether the court is functus officio regarding the issues determined in the previous judgment.
Ratio Decidendi
The court found that the application for revocation of grant was improperly seeking to re-litigate issues already determined after a full trial in the judgment of 28th September, 2018. The applicant, having been a party to those proceedings, could not use the present application to challenge the outcome or findings of that judgment. The court held that it was functus officio regarding those issues and that the proper recourse for the applicant was either to apply to set aside the proceedings that led to the judgment or to appeal to the Court of Appeal. Entertaining the application would amount to the court sitting on appeal over its own judgment, which is irregular and unlawful....
Court Disposition
application dismissed with costs
Orders
- The summons for revocation of grant is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 345 OF 2003
IN THE MATTER OF THE ESTATE OF SOLOMON MWAKA NKUMARI
(DECEASED)
GERALD MUNGATIA .............................................................PETITIONER
VERSUS
DOMINIC MUTUA NKUMARI..................................................OBJECTOR
J U D G M E N T
1. Solomon Mwaka Nkumari, the deceased in this cause, died on 2nd July, 1972. On 3rd November, 2003, Celina Kaigongi, the mother to the petitioner herein, petitioned for grant of letters of administration. However, she died on 7th August, 2005. Gerald Mungatia, the applicant, was then substituted as petitioner in her place on 15th January, 2007.
2. In the meantime, the objector had lodged an objection on 31st March, 2004. That objection was heard before me on 6th March, 2017 and 12th February, 2018, respectively. Although the applicant and his advocate were aware of the hearing dates, on both occasions, they failed to appear and the matter proceeded in their absence.
3. By a judgment delivered on 26th September, 2018, this court revoked the grant issued to the applicant on 16th January, 2007 and appointed the objector and John Mutigaas joint administrators of the estate of the deceased. Further, the court distributed the estate of the deceased as follows:-
L.R. NO. ABOTHUGUCHI/L. KAONGO/154 (6. 8 HA)
a) John Mutiga - 4. 8 Ha
b) Dominic Mutua Nkumari - 2. 0 Ha
4. On 28th November, 2018, the petitioner filed a summons for the revocation of the grant. The grounds upon which the application was grounded were that; the grant was obtained by means of untrue allegations of fact and misrepresentation; that he was a beneficiary of the estate as his father died while his mother was pregnant of him and that his 5 siblings who were born after him were the deceased’s children under the Ameru customs.
5. In his affidavit in support, the applicant acknowledged that the deceased was married to another wife i.e. Njema Nkairo who bore one daughter Catherine Mpinda. Catherine Mpinda then bore John Mutiga one of the administrators appointed by the court. He further alleged that the introduction letter from the chief that commenced these proceedings was not a forgery, but that the Chief had sought to coerce a benefit from the estate. Lastly, he stated that he and his siblings reside in the property of the deceased and some of his siblings have been buried thereon.
6. The respondent opposed the application. He contended that the application was an abuse of the court process for two reasons; firstly, that the advocate who drew and filed the application was not properly on record and secondly, that the application was but an appeal against the judgment of this court of 28th September, 2018.
7. The parties filed their respective submissions which this court has carefully considered.
8. The first issue is whether the application is properly before court. It is not in dispute that the applicant was hitherto represented by the firm of L. Kimathi Kiara & Company Advocates. The present application has been filed by the firm of F. K. Gitonga & Company Advocates.I have perused the record. There is no Notice of Change of Advocate filed in court before the said application was filed.
9. Rule 63 of the Probate and Administration Rulesspecifies the Orders in the Civil Procedure Rulesthat are imported to the Law of succession Act. Order 9is not one of the Orders of the Civil Procedure Rulesthat apply in succession matters. (See Jackson M. Miyogo v Simeon Mose Omiti [2016] Eklr).In this regard, that objection is rejected.
11. The next issue is whether the application is an appeal against the judgment of 28th September, 2018. The grant on record was issued after a full trial. It was after the court had heard the objector’s objection in full that it delivered the judgment being complained of. The applicant was a party to the proceedings in his own right. The application is challenging the outcome and findings made in that judgment.
12. To the extent that the findings in that judgment were made after a full trial, I do not think that those issues can be re-litigated before this court. This court is functus officioas far as those issues are concerned.
13. To my mind, the door open to the applicant was either to apply to set aside the proceedings that led to the judgment he is challenging or to appeal to the Court of Appeal. Attempting to determine the present application, this court will be sitting on appeal on an own judgment. That will be highly irregular if not unlawful.
14. Accordingly, I find the application to have no merit and dismiss the same with costs.
DATEDand DELIVEREDat Meru this 23rd day of May, 2019.
A. MABEYA
JUDGE