[2008] KEHC 2080 (KLR)
The High Court found that the application sought relief identical in substance to that previously determined by the Court of Appeal. Since the appellate court had conclusively decided both factual and legal issues regarding the grant, the High Court lacked jurisdiction to revisit or re-adjudicate those matters....
Source-derived case information.
- Citation
- [2008] KEHC 2080 (KLR)
- Parties
- Applicant: Kiprotich Kigen; Respondent: Samson Kigen
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 115 of 1996
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection and Application to Revoke Grant
- Outcome
- application struck out as abuse of process; costs to respondent
- Judges
- AI Tullu
- Legal Topics
- Revocation of Grant, Res Judicata, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiprotich Kigen
Applicant
Samson Kigen
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection and Application to Revoke Grant
Legal Issues
- 1 Whether the application seeking revocation of grant raises issues already determined by the Court of Appeal.
- 2 Whether the High Court has jurisdiction to revisit matters conclusively determined by the Court of Appeal.
- 3 Whether the application constitutes an abuse of the court process.
Ratio Decidendi
The High Court found that the application sought relief identical in substance to that previously determined by the Court of Appeal. Since the appellate court had conclusively decided both factual and legal issues regarding the grant, the High Court lacked jurisdiction to revisit or re-adjudicate those matters. Entertaining the application would result in orders inconsistent with the appellate decision, amounting to an abuse of process. The absence of an order for retrial or remittal from the Court of Appeal further precluded the High Court from reopening the case. Consequently, the application was struck out as an abuse of the court's process.
Court Disposition
application struck out as abuse of process; costs to respondent
Orders
- The Summons dated 6/06/2008 is struck out.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Succession Cause 115 of 1996
IN THE MATTER OF THE ESTATE OF SOTI KIGEN
KIPROTICH KIGEN ………………….. OBJECTOR/APPLICANT
VERSUS
SAMSON KIGEN …………………. PETITIONER/RESPONDENT
R U L I N G
I have considered the Preliminary Objection raised. Even before Counsel for the Applicant completed his response, the Court stopped him.
As a result, I do make this decision herein suo moto, at the Court’s instance.
I do find that the application dated 14-07-1997 had the following prayers:-
1. The Grant was obtained fraudulently by false representation of facts and/or by concealment from the Court of some material facts.
2. The Grant was obtained by reasons of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.
The application was heard viva voce with 17 witnesses testifying. Justice Nambuye found in favour of the Applicants. On appeal by the Respondent, the Court of Appeal set aside the Judgment and made findings of fact and law.
The applicant has now brought this application seeking an order that:-
“1. The Grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or in advertently.”
This relief is the same in words, meaning and effect as prayer 2 in the 1997 application.
The Court of Appeal having decided on the case, this Court has no jurisdiction to entertain the same question decided by the Court of Appeal. This is an issue that goes beyond res judicata.
I find that the application is an abuse of the Court’s process as the Court is being asked to grant orders which will be inconsistent and in conflict with the decision of the Court of Appeal. There was no order for retrial and I cannot re-open the case.
I hereby therefore strike out the Summons dated 6/06/2008 with costs to the Respondent.
DATED AND DELIVERED AT ELDORET ON THIS 21ST DAY OF JULY, 2008.
M. K. IBRAHIM
JUDGE
In the presence of:-
Mr. Chemoyai for the Applicant/Objector
Mr. Gicheru for the Respondent/Petitioner