[2022] KEHC 15408 (KLR)

Kabiri v Rubara & another (Civil Case 19 of 2018) [2022] KEHC 15408 (KLR) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15408 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Case 19 of 2018

TW Cherere, J

November 10, 2022

(FORMERLY MERU ELC CIVIL SUIT NO. 141 OF 2016)

Between

Susan Kanario Kabiri

Plaintiff

and

Wilson Mburugu Rubara

1st Defendant

Maritha Matuu Muchena

2nd Defendant

Ruling

1. By originating summons dated August 24, 2016 filed on even date, Plaintiff sought orders among them:1. Whether the two succession causes i.e Meru HC. Succ. Cause No. 370 of 2003 and Meru High Court succession cause No. 227 of 1994 should be annulled and the estate of Kabiri Murithi(deceased) be distributed afresh and for his wishes to be honoured2. That the defendants/respondents and other beneficiaries to the estate of Kabiri Murithi(deceased) benefited from LR No. Abothuguchi/ruiga/1042 to the exclusion of the beneficiaries from the 2nd house, thus disinheriting the Plaintiff/applicant and her siblings from the 2nd house and thus rendering them destitute.3. Whether the Applicant and the surviving beneficiaries of the 2nd house are solely entitled to land parcel No. Abothuguchi/ruiga/1042 while the surviving beneficiaries of the 1st house are solely entitled to land parcel no. Abothuguchi/ruiga/412 and Abothuguchi/ruiga/580

2. By an order issued on October 18, 2018, Mbugua J referred Meru ELC Civil Suit No. 141 of 2016 to this court to be determined together with Meru Succession Cause No. 370 of 2003 (In re Estate of M’rubaara M’ibiri (Deceased)).

3. Proceedings in Meru Succession Cause No. 370 of2003 (In re Estate of M’rubaara M’ibiri (Deceased)) reveal that the plaintiff herein was the 8th protestor.

4. By notice of preliminary objection dated September 19, 2022 filed on even date, Maritha Matuu Muchena (2nd Defendant) contends that the plaintiff’s claim was determined in In re Estate of M’rubaara M’ibiri (Deceased) [2019] eKLR and that the claim in this cause is therefore res judicata.

5. In opposing the P.O, plaintiff filed submissions on October 14, 2022 reiterating the principle on which a preliminary objection can be raised as restate by the Supreme Court in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others[2014] eKLR where it cited the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors(1969) EA 696 that:“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.

6. In support of the P.O, 2nd defendant by submission filed on September 26, 2022 in which she contends that the court in paragraph 14 and 15 of the judgment in In re Estate of M’rubaara M’ibiri (Deceased)) dealt with all facts raised by the Plaintiff’s affidavit of protest together with those of the persons she is seeking determination of the claim in this cause and that the issues are therefore res judicata.

7. In support thereof, 2nd defendant relied on Garden Square Ltd v Kogo &another (2003) eKLR where Ringera, J (as he then was) said that what constitutes a true preliminary objection is a pure point of law which if successfully taken would have the effect of disposing of the suit or application andOkumu & 9ors v Uganda Electricity Transmission Company Ltd & 7ors (High Court Civil Suit 49 of 2014) [2016] UGHCCD 83 in support of the proposition that the court is estoppped from entertaining a matter that has already been determined.

8. The 3rd and 4th defendants by their submission filed on October 17, 2022 support the preliminary objection and urge the court to find that the issues in this matter have already been determined.

9. In opposing the contention that the is not res judicata, Plaintiff contends that the parties in this matter are different than in In re Estate of M’rubaara M’ibiri (Deceased)). In support thereof, reliance was placed on Independent Electoral & Boundaries Commission v Maina Kiai & 5 others[2017] eKLR where the Court of Appeal held as follows:“…..for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.

Analysis and determination 10. I have considered submissions by counsel and the issue in question is whether the P.O is merited.

11. A preliminary objection is a point of law when if taken would dispose of the suit. It is what was formerly called a “demurrer”. The locus classicus on Preliminary Objection is the celebrated case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696, where Law J.A. stated:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”Sir Charles Newbold, President stated in the same judgment as follows: -“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

12. A perusal of the proceedings inIn re Estate of M’rubaara M’ibiri (Deceased)[2019] eKLR. The court heard their claim and concerning the protest by the 8th to 10 Protestors Gikonyo J in a judgment delivered on January 24, 2019 stated as follows:(13)To begin with, in these proceedings have enjoined some properties that are not part of this estate. For instance, parcel No. Abothuguchi/ Kariene/580. (15)From the onset, the protestors’ claim is on a property distributed in the Succession Cause in relation to the estate of their father. They never sought to be included in the Succession Cause 227 of 1994 against their step brothers. It is over 30 years down the line and the protestors have not stated why they did not act or why they seek to seek remedy in these proceedings. I find nothing that paints any vivid impression or picture in the mind of the court, that their claims should be entertained here. I also do not find any evidence of the current status of the property and the occupation thereof. Accordingly, this court is not able to entertain their claims herein. In any case, I fear their indolence only helps to distort their claim and the court is lost on the real purport of lodging their claims here. Their protest has only succeeded in creating a feeling of gauntness and dreariness in the court. Their averments that they were not aware of the earlier succession cause do not change the fact that the other cause is the right forum to lodge their claims. I reject their protests.

13. The court then went ahead and distributed the estate inIn re Estate of M’rubaara M’ibiri (Deceased)[2019] eKLR as follows:(1)Abothuguchi/Ruiga/1042 ½ a share to be divided equally amongst;1. Wilson Mburugu2. Purity Gacheri (to hold in trust for Kenneth Gitobu, Aida Nkirote& Nora Kanana)3. Julius Mwikumi Rubara4. Joseph Kiunga5. Francis Mbaabu Rubara6. Peter Mbaya Rubara(2)Abothuguchi/Ruiga/1042 ½ share;To be divided as per grant issued in Succession Cause No. 227 of 1994 In the matter of the estate of Muchena Kabiri alias Muchena Kabiiri Abothuguchi/Kariene/1742 ½ a share to be divided equally between;1. Peter Mbaya Rubara; and2. Purity Gacheri (to hold in trust for Kenneth Gitobu, Aida Nkirote& Nora Kanana)(3)Abothuguchi/Kariene/412Portion A1. Wilson Mburugu2. Purity Gacheri (to hold in trust for Kenneth Gitobu, Aida Nkirote & Nora Kanana)3. Julius Mwikumi Rubara4. Joseph Kiunga5. Francis Mbaabu Rubara6. Peter Mbaya RubaraPortion B1. Wilson Mburugu2. Purity Gacheri ( to hold in trust for Kenneth Gitobu, Aida Nkirote& Nora Kanana)3. Julius Mwikumi Rubara4. Joseph Kiunga5. Francis Mbaabu Rubara6. Agnes Karoki Muriuki4. Shares in Green Courie FarmAgnes Karoki Muriuki- Whole(5)Coop Bank SharesAgnes Karoki Muriuki- Whole(6)Kairima Self Help GroupJulius Mwikumi & Peter Mbaya Rubara equally(7)Kariene Self Help GroupJoseph Kiunga &Francis Mbaabu Rubara equally(8)Meru Central Farmers’ Cooperative shares equally amongst;1. Wilson Mburugu2. Purity Gacheri (to hold in trust for Kenneth Gitobu, Aida Nkirote& Nora Kanana)3. Francis Mbaabu Rubara

14. From the judgment, the court categorically stated that any claim concerning LR. Abothuguchi/ruiga/580 ought to have been filed in Meru High Court succession cause No. 227 of 1994. The court similarly determined the distribution of land parcels Abothuguchi/Kariene/412 and Abothuguchi/Ruiga/1042.

15. Clearly, the issues raised in this cause were determined in In re Estate of M’rubaara M’ibiri (Deceased) [2019] eKLR as between the same parties and they are therefore res judicata. 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. (See Lal Chand v Radha Kishan, AIR 1977 SC 789).

16. By seeking to prpceed with this suit, I understand the Plaintiff to ask this court to take a different view from the previous decision by this court in In re Estate of M’rubaara M’ibiri (Deceased) [2019] eKLR.

17. This court declines to allow the plaintiff to improperly and impermissibly re-litigate endlessly on the same issues as those already determined, for litigation must come to an end.

18. From the foregoing, this court makes the following orders:1. The notice of preliminary objectiondated September 19, 2022and filed on even date has merit2. The issues raised in this suit are res judicata3. This court orders that the file be marked as determined4. Each party shall bear its own costs

DATED AT MERU THIS 10TH DAY OF NOVEMBER 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Plaintiff - Ms. Muriithi for Kiautha Arithi &Co. AdvocatesFor 1st Defendant - N/AFor 2nd Defendant - Mrs. Ntarangwi for J.K.Ntarangwi & Co. AdvocatesFor 3rd and 4th Defendants - Mr. Karanja for Mwangi G. & Co. Advocates