[2014] KEHC 3535 (KLR)
The court found that the application dated 12th June, 2013 was a duplicate of a previous application dismissed in Succession Cause No. 941 of 2009, involving the same parties and subject matter. The applicants, having had their earlier application dismissed, were not entitled to file a fresh suit on the same issue....
Source-derived case information.
- Citation
- [2014] KEHC 3535 (KLR)
- Parties
- Applicant: James Sankale Maseenke; Applicant: Richard Kanana Massey (suing on behalf of the late John Mark Kisokoni Massey); Defendant: Korenti Kuya Saisi; Defendant: Koina Kuya Saisi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 421 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application to Revoke Grant
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Succession, Revocation of Grant, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Sankale Maseenke
Applicant
Richard Kanana Massey (suing on behalf of the late John Mark Kisokoni Massey)
Applicant
Korenti Kuya Saisi
Defendant
Koina Kuya Saisi
Defendant
Procedural Posture
Succession Cause / Ruling on Application to Revoke Grant
Legal Issues
- 1 Whether the application for revocation of the confirmed grant is merited given the previous dismissal of a similar application.
- 2 Whether filing a fresh suit on the same subject matter constitutes an abuse of the court process.
Ratio Decidendi
The court found that the application dated 12th June, 2013 was a duplicate of a previous application dismissed in Succession Cause No. 941 of 2009, involving the same parties and subject matter. The applicants, having had their earlier application dismissed, were not entitled to file a fresh suit on the same issue. The court held that this constituted an abuse of the court process. The applicants' proper remedy was to seek appeal or review of the earlier decision, not to initiate a new succession cause. Consequently, the application for revocation of the grant was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 12th June, 2013 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
No.333/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 421 OF 2013
IN THE MATTER OF THE ESTATE OFKUYA OLE SAISI LOLNGONYA(DECEASED)
JAMES SANKALE MASEENKE………….………………..…1ST APPLICANT
RICHARD KANANA MASSEY (SUING ON BEHALF
OF THE LATEJOHN MARK KISOKONI MASSEY) ………….2ND APPLICANT
VERSUS
KORENTI KUYA SAISI………………………………………….1ST DEFENDANT
KOINA KUYA SAISI ……………………………………….2ND DEFENDANT
RULING
Applicants herein filed an application dated 12th June, 2013 seeking for an order revoking/annulling the confirmed Grant issued on the 9th July, 2004 in Succession Cause No. 14 of 2003.
The application is based on grounds that the grant was obtained by virtue of the consent that was recorded in court on the 9th July, 2004 apportioning Title No. Kajiado/Meto/62 between the widows of Kuya Ole Saisi (deceased).
The deceased, the late Mark Kisokon Massey and James Sankale Ole Maseenke, the 1st applicant herein were registered as proprietors in common in respect of the title in the year 1987. It is therefore averred that it will be in the interest of justice that the grant be revoked since it purports to give the respondents inheritance rights over the whole suit premises.
A similar application was made in Succession Cause No. 941 of 2009. I delivered a ruling on 12th April, 2013 dismissing it on grounds that no evidence was adduced of a Certificate of a Confirmation of the grant purported to have been issued distributing the property in Senior Resident Magistrate Court’s Kajiado No. 14 of 2003.
Subsequently, the applicants filed the current application. A perusal of the application dated 12th June, 2013 is a duplicate of the application dated 6th November, 2009 filed in Succession Cause No. 941 of2009. It is a repetition of the same, word by word. The only difference is the date and the firm of advocates that filed it and one additional ground that the applicants sought to rely on.
The parties in both Succession Causes No. 941 of 2009and Succession Cause No. 421 of 2013 are similar and so is the subject matter. Having ruled on the matter it was an abuse of the court process for the applicants to file a fresh suit on the same subject matter. The subject matter in both causes being revocation of the grant is directly and substantially in issue in Succession Cause No. 941 of 2009. The application having been dismissed it was erroneous for the party to file another succession cause. They had an option of appeal or review that they should have exercised.
From the foregoing, the application must be dismissed and I so order. There will be not order as to costs as the respondents did not turn up on the hearing date.
DATED, SIGNED and DELIVEREDat MACHAKOSthis 11THday ofJULY, 2014.
L.N. MUTENDE
JUDGE