[2012] KEHC 3793 (KLR)
The court held that the applicants' request to be included as heirs was not res judicata, as the only issue previously determined was the status of the objector, Mary Kasiti Shitambasi. The court found that objections to the applicants' inclusion at this stage were premature, as the confirmation of grant had not yet...
Source-derived case information.
- Citation
- [2012] KEHC 3793 (KLR)
- Parties
- Petitioner: Jones Nakhumicha Shitambasi; Petitioner: Fredrick Ashimosi Shitambasi; Objector: Mary Kasiti Shitambasi; Applicant: Isaac Lumasayi Shitambasi; Applicant: Sylufanus Likwiru Shitambasi; Applicant: Edwin Alphause Luvutse
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 814 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Inclusion as Heirs
- Outcome
- application allowed
- Legal Topics
- Succession, Confirmation of Grant, Beneficiaries Inclusion, Paternity Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jones Nakhumicha Shitambasi
Petitioner
Fredrick Ashimosi Shitambasi
Petitioner
Mary Kasiti Shitambasi
Objector
Isaac Lumasayi Shitambasi
Applicant
Sylufanus Likwiru Shitambasi
Applicant
Edwin Alphause Luvutse
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Inclusion as Heirs
Legal Issues
- 1 Whether the applicants should be included in the list of heirs of the deceased's estate.
- 2 Whether the application is res judicata.
- 3 Whether the applicants can be heard after confirmation of grant.
Ratio Decidendi
The court held that the applicants' request to be included as heirs was not res judicata, as the only issue previously determined was the status of the objector, Mary Kasiti Shitambasi. The court found that objections to the applicants' inclusion at this stage were premature, as the confirmation of grant had not yet occurred and the applicants' relationship to the deceased could be contested at that stage through evidence. The court emphasized that excluding the applicants without hearing the basis of their claim would amount to condemning them unheard, contrary to principles of natural justice. The technical issue of the advocate's representation was deemed irrelevant to the substantive...
Court Disposition
application allowed
Orders
- The application dated 20th July, 2010 is granted as prayed.
- The three applicants and the objector are to file affidavits indicating agreement or disagreement with the proposed mode of distribution.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMENGA
SUCCESSION CAUSE 814 OF 2009
IN THE MATTER OF THE ESTATE OF HUDSON SHITAMBASI LUMASAI(DECEASED).
JONES NAKHUMICHA SHITAMBASI
FREDRICK ASHIMOSI SHITAMBASI….........………………………………PETITIONERS
VERSUS
MARY KASITI SHITAMBASI………………………………………………….OBJECTOR
AND
1. ISAAC LUMASAYI SHITAMBASI
2. SYLUFANUS LIKWIRU SHITAMBASI………............…………………APPLICANTS
3. EDWIN ALPHAUSE LUVUTSE
R U L I N G
By their application dated 20th July, 2010 the three applicants are seeking orders that they be included in the list of heirs of the estate of the deceased.
The application is supported by the affidavit of Isaac Lumasayi Shitambasi, the 1st applicant. Mr Samba, Counsel for the applicants submitted that the applicants are the deceased’s children but were excluded from the list of heirs and that the matter is not res judicata.
Mr Ashimosi, Counsel for the respondent submitted that Mr. Samba advocate is not properly on record as he acted for the objector. The notice of objection was determined in March 2010 and the grant was confirmed. The applicants have not been parties to the suit and cannot be brought in after the grant has been confirmed. They should have applied for provision of dependants under section 26 and rule 45 of the Succession Act. The issue of paternity is in dispute and has to be proved by way of evidence.
I have gone through the proceedings herein and do find that a ruling was delivered on 7th October, 2010. The ruling related to the issue as to whether the objector was the deceased’s wife and this was done after parties had adduced oral evidence. The proceedings of 9th March 2010 before Justice Lenaola indicate as follows:-
“Prior to confirmation of the grant and distribution of the estate, I direct that evidence be taken on the status of Mary Kasiti Shitambasi vis- a- vis the deceased”
The above direction led to the taking of oral evidence and subsequent ruling on 7th October, 2010. Since then, there has been no action on the matter and the grant has not been confirmed. It should be clear that one can be included in the list of beneficiaries and evidence later be adduced to disprove that position. Since the applicants are only seeking to be included in the list of heirs, I do hold that any objection to their inclusion at this stage is premature. When the matter is listed for confirmation of the grant, parties can either agree or disagree on the mode of distribution and dispute the relationship of the deceased to some of the proposed beneficiaries. That would call for the taking of evidence. For the court to shut out the applicants without knowing the basis of their claim at this stage would be tantamount to condemning them unheard.
As to the issue as to whether the application is res- judicata, the court proceedings do not support that allegation as only the issue of Mary Kasiti Shitambasi was heard and determined by the court. Whether Mr. Samba Advocate is wrongly on record for the applicants is a technical issue which does not assist the court in reaching at a proper decision on the dispute.
In the end, I do find that the application dated 20th July, 2010 be and is hereby granted as prayed. Since there is an application for confirmation of grant pending, having been filed on 7th October, 2010, I do order that both the three applicants and the objector do file their respective affidavits as to whether they are in agreement with the proposed mode of distribution or not. Thereafter the matter shall be listed for directions.
In short, the application dated 20th July, 2010 is allowed. Costs shall be in the cause.
Dated at Kakamega this 23rd day of May 2012.
S.JCHITEMBWE
J U D G E