[2022] KEHC 16632 (KLR)

Kamanu & others v Kogler & 6 others (Miscellaneous Civil Application E035 of 2022) [2022] KEHC 16632 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16632 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Civil Application E035 of 2022

HK Chemitei, J

December 15, 2022

Between

Mathew Kamau Kamanu & others

Applicant

and

Consolata Wacuka Kogler

1st Respondent

Brian Kamau Kogler

2nd Respondent

Teresia Njoki

3rd Respondent

Registrar General

4th Respondent

Registrar Of Births And Deaths

5th Respondent

Director Of Immigration

6th Respondent

Ministry Of Foreign Affairs

7th Respondent

Ruling

1. In their motion dated July 8, 2022. The applicants pray for several orders, namely,(a)That the honourable court be pleased to grant stay of proceedings in Nakuru CM Succession Cause No E47 of2021, in the estate of the late peter Arthur Wachira(deceased) pending the hearing and determination of this application.(b)The court to order the 1st ,2nd and 3rd respondents to supply the applicants herein through the deputy registrar high court Nakuru with copies of both the 1st and 2nd respondents birth certificates and national identity cards, travel passports and the deed poll between the 3rd respondent and one Kogler for onward transmission to the 4th ,5th ,6th ,7th and 8th respondents herein.(c)That the court be pleased to order upon being supplied with the documents sought in prayer 3 above and based on the personal information contained therein ,the 4th to 8th respondents herein do avail before this honourable court and supply the applicants through the deputy registrar high court Nakuru with the paternity records in their custody both biological and adoptive of the 1st and 2nd respondents herein, Consolata Wacuka of Kenyan identity card no 33XXXX and Brian Kamau Kogler Kenyan identity card no 37 XXXX.(d)The documents supplied and or provided in prayer 3 and 4 above be produced as evidence before the trial court in Nakuru CMCC Succession Cause No E47 of2021 in the matter of the estate of the late Wachira (deceased).

2. The application is based on the sworn affidavit of Mathew Kamau Kamanu dated the same date.

3. When the matter came up for directions the respondents raise a preliminary objection on a point of law dated July 18, 2022. Their primary objection was that this suit was res judicata as this court had earlier determined the same issues under High Court Miscellaneous Suit No 007 of 2022 on 23rd June 2022. Accordingly, it was improper for the applicants to have brought similar application which runs contrary to the provisions of section 7 of the Civil Procedure Act.

4. The court directed the parties to file written submissions so as to dispose the said objection. The parties have indeed complied.

5. Before looking at the same, what is before the court is not difficult to understand. The applicants are brothers and sister to the late Peter Arthur Wachira. The 3rd respondent was his wife and the 1st and 2nd respondents are alleged to be his children. Alleged because that is the subject of this application and more importantly the succession cause mention above pending at the lower court.

6. The 1st and 2nd respondents were allegedly adopted by one Kogler and they seemed to have migrated to Germany. These are facts which may need to be established later through a proper judicial process.

7. The applicants then filed an application vide a Misc Application no 007 of 2022 seeking more less similar orders and this court rendered itself vide a ruling dated June 23, 2021 in which it dismissed the application for the reason that the 1st and 2nd respondents were not a party to the suit and thus their private rights would be infringed if the orders were granted.

8. The applicants have then filed this application seeking similar orders and have enjoined the applicants something which they had failed to do in the earlier application. This has therefore provoked the preliminary objection stated above.

9. The court has perused the rival submissions and it does not intend to reproduce them here. The respondents however are of the view that the issues which are raised in this application are similar to the issues settled by this court especially on the question of compelling the respondents and in this case the government agencies to comply with the orders sought by the applicants. They relied among others on the case of Henderson v Henderson [1843-60] ALLER 378.

10. The applicants on their part have submitted that the objection does not lie as the respondents were not parties to the earlier application and in any case the court did not go into the substance of the application namely the determination of the prayers sought therein concerning the respondent’s paternity as well as the alleged adoption. They prayed that this court exercises its discretion and rely on Article 50 and 159 of the Constitution.

11. The issue of res judicata is well captured under section 7 of the Civil Procedure Act and does not need much elaboration herein.

12. It is clearly obvious that the 1st ,2nd and third respondents were not a party in the suit No 007 of 2021. The court disallowed that application for the said reason. As such although the rest of the parties herein were involved the real persons in whom the orders were affected were not involved as they were not enjoined.

13. One of the salient features of section 7 of the Civil Procedure Act states that the parties must have been the same. Clearly they were not. It was not their fault but that of the applicants who did not see it fit to involve them at that moment. The prayers sought though they are similar were disallowed for the same reason.

14. Had it for instance been that the 1st ,2nd and third respondents were involved, then I doubt whether the applicants would have escaped the scrutiny of section 7 above. For now, and solely on the reason that the respondents were not parties to the application, the preliminary objection cannot stand.

15. In the premises, the preliminary objection is hereby disallowed. Costs shall await the outcome of the application.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 15TH DAY OF DECEMBER 2022. H. K. CHEMITEI.JUDGE