[2022] KEHC 3119 (KLR)

In the Matter of the Estate of Míkirima Karingu (Deceased (Succession Cause 16 of 1979) [2022] KEHC 3119 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3119 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 16 of 1979

TW Cherere, J

July 7, 2022

Between

Henry Muchai

Applicant

and

Stanley Muthuri

Respondent

Ruling

1. On December 10, 2008, Applicant filed the Notice of Motion dated 02nd December, 2008 seeking revocation of the grant dated 16th February, 1982 on the ground that he had been disinherited and his share that was small compared to his brother’s shares distributed to his son Kenneth Ndumba.

2. Subsequently on October 25, 2011, Applicant filed summons dated September 30, 2011 seeking amendment of grant dated February 16, 1982 on the same ground as in the application dated 02nd December, 2008 that he had been disinherited and his share that was small compared to his brother’s shares distributed to his son Kenneth Ndumba.

3. The record reveals that the application December 2, 2008 was fixed for hearing on several occasions but there is no evidence that it was heard. The record however demonstrates that the summons dated September 30, 2011 was heard on 25th June,2018 and by a ruling dated 05th July, 2018, the court held that the application had been brought with inordinate delay and had been overtaken by limitation of time.

4. I have considered the Notice of Motion dated December 2, 2008. The Court of appeal in the case of William Koross (Legal personal Representative of Elijah C.A. Koross) v Hezekiah Kiptoo Komen & 4 others [2015] eKLR addressed the issue of res judicata and stated as follows:“The philosophy behind the principle of res judicata is that there has to be finality. Litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives in. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.………………………..”

5. In yet another case, the Court of Appeal in Kenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] eKLR cited with approval the decision in Lal Chand v Radha Kishan, AIR 1977 SC 789 where it was stated that;“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.”

6. With respect, the issues raised by the Applicant in the the application dated December 2, 2008 are res judicata for the reason that they were determined by this court’s ruling dated July 5, 2018.

7. Most unfortunately, the Notice of Motion dated December 2, 2008 appears to be a repudiation and negation of the salutary aims of the res judicata bar. The issues concerning distribution of deceased’s estate raised in the Notice of Motion dated December 2, 2008 have been litigated upon by the same parties.

8. By seeking an order to redistribute the estate, I understand the Protestors to ask this court to take a different view from the previous decision by this court concerning the distribution of deceased’s estate.

9. This court declines to allow the Objector to improperly and impermissibly re-litigate endlessly on the same issues for litigation must come to an end.

10. From the foregoing, this court makes the following orders:1. The issues raised in the Notice of Motion dated December 2, 2008 are res judicata2. The Notice of Motion dated December 2, 2008 has no merit and it is dismissed3. Applicant will bear his own costs

DATED AT MERU THIS 07 TH DAY OF JULY 2022T. W. CHEREREJUDGECourt assistant - Morris KinotiFor Petitioner/Respondent - N/AFor Objector/Applicant -Mr. Kimathi for Mutembei & Kimathi Advocates