[2023] KEHC 24942 (KLR)

Lagat v Lelei (Probate & Administration 35 of 2013) [2023] KEHC 24942 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24942 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 35 of 2013

RN Nyakundi, J

November 7, 2023

Between

Eliud K Lagat

Petitioner

and

Everlyne Jepkemboi Lelei

Protestor

Ruling

1. The applicant approached this court vide an application dated 18th September 2023 seeking the following orders;1. Spent

2. That the Honourable Court be pleased to Review the Ruling dated 9th April, 2021 together with its consequential effect.

3. That the Estate through the appointed administrators to compensate back the Protestor amount spent on That parcel of land known as Eldoret Municipality Block 9/1060.

4. That costs be in the cause.

2. The application is premised on the grounds set out therein and the contents of the affidavit sworn in support of said application. The respondent opposed the application vide a replying affidavit dated 29th September 2023.

Applicant’s case 3. The applicant’s case is That there exists discovery of new evidence That could not have been produced at the time the protest was being heard since she was in the United States and further, That there exists an error apparent on the face of the record.

4. The applicant urged That what was left out was That the 1st wife contributed towards the acquisition of the parcel of land known as Nandi/Kapkangani/Kaimosi/556 before the 2nd wife was married and hence she is entitled to the entire of this parcel of land. Further, That the 1st wife was married in 1959, ten years before the 2nd wife was married and at That time said parcel had already been acquired. The 1st wife did manual work to plough the farm and the proceeds from there and they managed to acquire this land where they started a tea and maize plantation. The proceeds from the sale of tea and maize they used to acquire Kapkangani Koibarak Farm.

5. The applicant stated That together with the deceased they bought Laboret farm known as Nandi/kipkaren/Salient/175 and later they also purchased Nandi/Kipkaren/Salient/176 before the 2nd wife was married. Further, That the parcel of land known as Eldoret/Municipality Block 9/1060 was bound to be sold by public auction and she went out of her way to pay the rates amounting to Kshs. 456,742/- to prevent it being sold, which she wants to be compensated for. She also spent Kshs 10,875/- in payment of the rates to the county government.

6. She stated That as a security measure to protect Eldoret/Municipality Block 9/1060 from being grabbed she erected a perimeter wall at a cost of Kshs. 294,000/-. It also cost her Kshs. 30,000/- to build a gate and another Kshs. 264,600/- for acquisition of material to erect the perimeter wall. She further claimed Kshs. 10,000/- for culverts she constructed and Kshs. 5,700/- for wheelbarrows That were used to construct the wall.

7. It is the applicant’s case That the ruling should be reviewed as this information was not tendered at the time of the hearing. She urged the court to allow the application as prayed.

Respondent’s case 8. Learned counsel for the respondent submitted That the Application is res Judicata as it raises issues That were heard and determined at the hearing of the protest, between the same parties, litigating under the same title by a court of competent jurisdiction. The issue That the 1st wife is entitled to the entire parcel of land number Nandi/Kapkangani/kaimosi/556 by virtue of her contributing towards its acquisition was dealt with by the court at the hearing of the protest and the Honourable Judge made a determination on it.

9. He urged That the purported evidence of contribution by the 1st wife as espoused in the protestors’ Application is not new and was within the knowledge of the Protestor. She should have been diligent enough to espouse the same before the Court at the time of hearing the protest. It is our humble submission That the Protestor cannot now bring this claim as the doctrine of Res Judicata bars the raising of claims from the same transaction or series of transaction and That could have been but was not raised in the first suit. He referred the court to the provisions of Section 7 of the Civil Procedure Act and the Blacks’ law Dictionary on the definition and elements of ResJudicata.

10. It is the respondent’s case That there are set principles That must be met for the orders for review to be granted in a succession proceedings as was stated in the case of John Mundia Njoroge & 9 Others vv. Cecilia Muthoni Njoroge & Another [2016] eKLR. where the court cited Rule 63 of the Probate and Administration Rules. He also cited the case of In Re Estate of Simoto Omwenje Isako (Deceased) [2020] eKLR.

11. Counsel urged That there is no error apparent in the ruling delivered by the court. The protestor has not demonstrated in the least where such error exists on the ruling and such is not entitled to the orders for review under this limb. Counsel referred the court to the cases of Muyodi v Industrial and Commercial Development Corporation & Another (2006) 1 EA 243 and Paul Mwaniki v National Hospital Insurance Fund Board of Management (2020) eKLR in support of this submission.

12. It is the respondent’s case That the purported evidence of contribution by the 1st wife is not new and was within the knowledge of the Protestor. She should have been diligent enough to espouse the same before the Court at the time of hearing the protest. He urged That the Protestor cannot now bring this claim under the guise of it being new and important as it is reasonably expected That she ought to have brought it at the hearing of the Protest. Counsel cited the case of Tokesi Mambili & Others w Simion Litsanga Sabwa (Civil Appeal 90 of 2001 - Kisumu) in support of this submission.

13. The respondent submitted That the Protestor seeks an order That the Estate through the appointed administrators to compensate back the Protestor amount spent on That parcel of land known as Eldoret Municipality Block 9/1060. Further, That the succession court should not be dragged into deciding matters of compensation which fall under the civil claims ambit. The protestor ought to file a separate civil claim for compensation as sought in her Application.

14. In conclusion, counsel submitted That a period of two years and five months has lapsed since Hon Justice Omondi delivered the ruling the applicant seeks to review. No reasonable explanation has been rendered by the Protestor for the delay in bringing this Application.

15. The respondent urged the court dismiss the application with costs.

Analysis & Determination 16. Upon consideration of the pleadings and responses thereto, the following issues arise for determination;1. Whether the application for review is res judicata2. Whether the application is merited

Whether the application is res judicata 17. The principles on ResJudicata are set out in section 7 of the Civil Procedure Act as follows;"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

18. The Civil Procedure Act also provides explanations with respect to the application of the Res Judicata rule. Explanations 1-3 are in the following terms:‘’Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation.(2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of That court.Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’

19. The respondent’s contention is That the application raises issues That were determined during the hearing of the protest. The issues raised in the present application are regarding the review of the ruling dated 9th April 2021 and compensation for the amount the protestor spent on the parcel known as Eldoret Municipality Block 9/1060. The impugned ruling determined the distribution of the estate which comprised of the properties known as Nandi/Kapkangani/Kaimosi/556 and Eldoret Municipality Block 9/1060. The Court considered the protest and determined That the same was without merit, allowing the distribution as per the consent on the same. The present application seeks to have the court compensate the applicant for the money spent on one of the properties. The applicant herein was the protestor and sought compensation for the land rates she paid amounting to Kshs. 456,742/-. In the present application, she is seeking for compensation of the same and has added other sums That she claims are owed to her from the estate. It is my considered view That the issue of compensation for these alleged sums was addressed in the ruling dated 9th April 2021 where the learned judge was of the opinion That the applicant was to seek compensation through the lodging of a formal claim with the administrators of the estate. The monies she claims fall within liabilities of the estate and as per the provisions of the Law of Succession Act, it is the responsibility of the administrators of the estate to settle any liabilities owing from the estate. This is provided for under section 83 (d) of the Law of Succession Act which states;Personal representatives shall have the following duties:-(d)to ascertain and pay, out of the estate of the deceased, all his debts;

20. In the premises, if there is any credible documentary evidence on the payments the applicant claimed to have paid on behalf od the deceased to protect said properties, the applicants’ next port of call is to engage the administrators vide a formal claim. Therefore, it is crystal clear That the application is res judicata as far as prayer 3 is concerned.

Whether the application is merited 21. Review is governed by Rule 63 of the Probate and Administration Rules, which provides as follows: -63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.(2)Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”

22. Therefore, any party seeking review of orders, in a probate and succession matter, is bound by the provisions of Order 45 of the Civil Procedure Rules.

23. The substantive provisions of Order 45, state as follows:1. (1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

24. For the application to succeed the applicant must demonstrate That there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. Secondly, an applicant must demonstrate to the court That there has been some mistake or error apparent on the face of the record. The third ground for review is worded broadly: an application for review can be made for any other sufficient reason.

25. The present application is premised on the grounds That there was discovery of new evidence and That there was an error apparent on the face of the record. The new evidence That the applicant alludes to is That the 1st wife contributed to the acquisition of the parcel known as Nandi/Kapkangani/Kaimosi/556. This, in my view, cannot be considered evidence That was not within the knowledge of the applicant as the first wife was married in 1959 and the applicant cannot claim to have suddenly discovered the alleged contribution to the purchase of the property after the distribution. There is no evidence she has tendered That was not within her knowledge at the time of the protest. It is my considered view That the purpose of the application is to delay the respondent from enjoying the fruits of the judgement.

26. In the premises, the application is dismissed in its entirety. Each party shall bear its own costs.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 7TH DAY OF NOVEMBER 2023R. NYAKUNDIJUDGE