[2022] KEHC 12711 (KLR)

John Mwangi Joseph & 2 others v Michael Njoroge "B" & 2 others (Miscellaneous Application 35 & 202 of 2017 (Consolidated)) [2022] KEHC 12711 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12711 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Application 35 & 202 of 2017 (Consolidated)

MM Kasango, J

June 16, 2022

Between

John Mwangi Joseph

Applicant

and

Michael Njoroge “B"

Respondent

As consolidated with

Miscellaneous Application 202 of 2017

Between

Michael Njoroge "B"

1st Applicant

Joseph Wathigari

2nd Applicant

and

John Mwangi Joseph

1st Respondent

Vincent Kimani

2nd Respondent

Ruling

1. The matters herein pertains to the estate of Joseph Chege Muruma deceased. The disputes relating to this estate have dragged in the court for far too long. Justice Joel Ngugi by his ruling of June 4, 2018 very succinctly described the status of the disputes by stating:-“This is one case that has truly refused to end. It saw its first light of day in 1979 as Gatundu Senior Resident Magistrate’s Succession Cause no 5 of 1979. It has seen several alterations and mutations - several of which have gone all the way to the Court of Appeal and then back again to the Gatundu Magistrate’s Court. Thirty nine years later I am required to determine two related applications which raise the same question: which is the proper decree to enforce in the case?I hope my resolution of the case will bring to an end this protracted dispute. I fear, given the history and conduct of the parties, that I am wrong.”

2. By that ruling, Justice Joel Ngugi determined thus:-“The correct and controlling decree issued in Gatundu Magistrate’s Court Succession Cause no 15 of 1979 has always been that which was issued on July 20, 1993. That decree reflects the proper arbitral award in the case. The arbitral award has never been set aside by any court of competent jurisdiction.”

3. It is in the background of the protracted issues brought by several applications and that ruling of the learned Judge Joel Ngugi that Michael Njoroge “B” and Samuel Muriithi Chege filed two applications dated December 11, 2019 and May 31, 2021. The application dated December 11, 2019 was opposed through preliminary objection dated September 8, 2020 filed by John Mwangi Joseph and Vincent Kimani Chege.

4. The application dated December 11, 2019 is for an order to refer this matter for arbitration before elders. The application is premised on the grounds amongst others, that: it is not too late to engage in alternative dispute resolution; that the ruling of Justice Joel Ngugi, and other rulings made failed to address the underlying issues which can be addressed through alternative dispute; and that the distribution of the estate of the deceased failed to include deceased’s daughters and left out some of the deceased’s properties.

5. By the application dated May 31, 2021, the applicants seek injunction order to restrain the respondents from interfering with property Ndarugu/Gathaite/252A.

Analysis 6. The respondent’s preliminary objection dated September 8, 2020 objects to the applicant’s application seeking for reference of this matter for determination by alternative dispute resolution. The objection of the respondent is based on the doctrine of re judicata.

7. Section 7 of the Civil Procedure Rules forbid the re-opening of litigation in fresh action on an issue which was previously raised and decided. Section 7 provides:-“No court shall try any suit or proceeding in which the matter in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”.

8. The Court of Appeal in the case William Koros (Legal Personal Representative of Elisha C A Koross) VS Hezekiah Kiptoo Komen & 4 Others [2015] eKLR discussed the doctrine of res judicata and stated thus:-“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. 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.Speaking for the bench on the principles that underlie res judicata, Y V ChandraChud J in the Indian Supreme Court case of Lal Chand vs Radha Kishan, Air 1977 SC 789 stated and we agree:-‘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’”.

9. The applicant seeks that this matter be referred for alternative dispute resolution. The respondents correctly stated that that issue is res judicata. The issue of distribution of the estate was concluded when the Gatundu Magistrate’s Court issued the decree on July 20, 1993. That decree was the subject of unsuccessful appeals before the High Court and the Court of Appeal. It follows the issue of the distribution of the deceased’s estate was determined and the present application to refer, what I can only refer to as imaginary dispute for resolution by arbitration is a nonstarter. It is indeed an abuse of the court process.

10. Following the ruling by Justice Joel Ngugi, the estate was distributed whereby each beneficiary obtaining his/her title. What then remains for resolution in the matter of distribution of the deceased’s estate? I respond to that rhetorical question by stating, absolutely nothing remains to be resolved. It follows that the application dated December 11, 2019 is unmerited and is dismissed with costs.

11. The application dated May 31, 2021 seeking injunction orders must also fail for two reasons:

12. The first reason is that the injunction sought is interlocutory yet there are no pleadings supporting that interlocutory prayer. Interlocutory injunction is granted in deserving cases pending determination of the main suit. That is not the case hereof. The application is dismissed with costs.

13. The second reason the application fails is because the applicant failed to show the proprietary right he has to the subject property.

Disposal 14. Bearing the above discussion in mind, the upshot of this ruling is as follows:-a.The applications dated December 11, 2019 and May 31, 2021 are dismissed with costs.b.The preliminary objection dated September 8, 2020 is upheld with costs.c.I order these consolidated files to be closed.

RULING DATED AND DELIVERED AT KIAMBU THIS 16THDAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court assistant : MouriceFor applicants: - Mr BirhiangaFor respondents :- N/ARuling delivered virtually.MARY KASANGOJUDGE