[2022] KEHC 13829 (KLR)

In re the Estate of Muthoka Itumo (Deceased) (Succession Cause 16 of 2019) [2022] KEHC 13829 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13829 (KLR)

Republic of Kenya

In the High Court at Makueni

Succession Cause 16 of 2019

GMA Dulu, J

October 12, 2022

IN THE MATTER OF THE ESTATE OF MUTHOKA ITUMO (DECEASED)

Between

Joseph Makusa Muthoka

Petitioner

and

Laban Nduva Masai

Respondent

Ruling

1. In this matter wherein the petitioner Joseph Makusa Muthoka through counsel RM Matata & company advocates for the petitioner filed an application dated October 26, 2020 seeking restraining orders against the respondent , the respondent through counsel OH Oyugi & company advocates, filed a notice of preliminary objection dated March 29, 2021 in the following orders –1. The issues canvassed are res judicata having been canvassed before Justice Angote and determined in ELC 69 of 2017, Kilungu succession cause no 27 of 2016 and 28 of 2016 and Makueni Family Miscellaneous 28 of 2018 and 22 of 2018 by Lady Justice Ongu’di on June 12, 2019. 2.The application is fatally and incurably incompetent and should be struck out in limine and costs be awarded to the respondent.

2. The preliminary objection was filed with copy of a ruling in Machakos ELC Case No 69 of 2017 –Mutetema Itumo and Kamene Nzalai v Muthoka Itimodelivered on January 26, 2018 by Justice Angote, another ruling in the same Machakos ELC Case No 69 of 2017 Laban Masai, Kingoo Mutetema Itumo v Joseph Makusa Muthoka, and John Muia Kimene and Simeon Kimondiu Nalyuka interested parties delivered on July 19, 2019 by Justice OA Angote.

3. Also filed with the Preliminary Objection, was a ruling in Kilungu Principal Magistrate Succession Cause No 27 of 2016 – in the matter of the Estate of Mutetema Itumbo (deceased) – between Kingoo Mutetema and Laban Masai administrators v Joseph Makusa Muthoka objector delivered on October 11, 2018 by Hon EM Muiru, as well as a ruling in Makueni High Court P&A Cause No 29 of 2018in the Matter of the Estate of Mutetema Itumo (deceased) Joseph Makusa Muthoka applicant v Laban Nduva Masai and Kingoo Mutetema respondents, delivered on June 12, 2019 by Justice HI Ong’udi.

4. Though the preliminary objection was served, no response to it was filed by the petitioner. I note that a Certificate of Urgency dated May 31, 2021was filed by RM Matata advocate for the petitioner, in which asked that the file be placed before the deputy registrar for appropriate directions, especially on prayer 2 for grant of restraining orders against subdivision of the land herein; land parcel nos Machakos/Ulu 450 and 451, that certificate of urgency was not pursued by the petitioner’s counsel.

5. Also, instead of responding to the preliminary objection, the advocate for the petitioner, RM Matata & company asked the Deputy Registrar vide a letter dated July 26, 2021, to serve a summons on Sospeter Kaweke Muthoka, Joshua Kimeu Muthoka, and Austin Wambua Muthoka for a hearing scheduled for October 26, 2021, but the said advocate did not attend court that day.

6. In my view therefore, the application of the petitioner herein of the petitioner herein, dated October 26, 2020, not having been prosecuted and the petitioner not having filed a response to the preliminary objection of the respondent, which annexed several previous decisions of the courts on the same subject matter, i am constrained to uphold the preliminary objection. It is clear to me that the objections raised above have merits.

7. Consequently, I uphold the preliminary objection dated March 29, 2021 and find that the petitioner’s application dated October 26, 2020 is incurably incompetent, and thus proceed to strike it out, with costs to the respondent Laban Nduva Masai. The application is thus hereby struck out with costs.

DELIVERED, SIGNED & DATED THIS 12TH DAY OF OCTOBER, 2022, VIRTUALLY AT MAKUENI COURT.............................GEORGE DULUJUDGE