[2017] KEHC 4237 (KLR)
The court found that the issues raised by Patiness Gaturo Marete in her affidavits in protest had already been conclusively determined in prior judgments and rulings, specifically by Justice Emukule and Justice Kasango. The doctrine of res judicata applied, barring further litigation on the same matters. The court...
Source-derived case information.
- Citation
- [2017] KEHC 4237 (KLR)
- Parties
- Applicant: Patiness Gaturo Marete (substituted for Marete Mwirebu); Respondent: Elias Njabani; Interested Party: Daniel Murithi Geoffrey
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 220 of 1998
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; affidavits in protest struck out
- Legal Topics
- Res Judicata, Locus Standi, Confirmation of Grant, Distribution of Estate, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patiness Gaturo Marete (substituted for Marete Mwirebu)
Applicant
Elias Njabani
Respondent
Daniel Murithi Geoffrey
Interested Party
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the matter is res judicata in light of previous judgments and rulings.
- 2 Whether the interested party has locus standi to claim against the estate.
- 3 Whether the affidavits in protest by Patiness Gaturo Marete are valid or constitute vexatious litigation.
Ratio Decidendi
The court found that the issues raised by Patiness Gaturo Marete in her affidavits in protest had already been conclusively determined in prior judgments and rulings, specifically by Justice Emukule and Justice Kasango. The doctrine of res judicata applied, barring further litigation on the same matters. The court also held that the interested party, Daniel Murithi Geoffrey, lacked locus standi to claim against the estate of the deceased as any such claim should be directed to the estate of Marete Mwirebua, from whom he allegedly purchased land. The repeated filings by Patiness Gaturo Marete were deemed vexatious and an abuse of court process, intended to delay the finalization of the...
Court Disposition
preliminary objection upheld; affidavits in protest struck out
Orders
- Affidavits in protest sworn and filed by Patiness Gaturo Marete are struck out.
- Charity Kanyua, Elias Njabani Mwirebua, Kamundi Mwirebua and Gilbert Kinyua to attend court for confirmation of the estate in respect of distribution of parcel of land No. Mwimbi/Murugi/525.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT KENYA AT MERU
SUCCESSION CAUSE NO. 220 OF 98
IN THE MATTER OF THE ESTATE OF THE LATE MWIREBUA KABUCHANIA alias MWIRABUA KABUCHANIA - DECEASED
MARETE MWIREBU
(substituted by Patiness Gaturo Marete)......1ST PETITIONER
VS
ELIAS NJABANI.............................................................OBJECTOR
DANIEL MURITHI GEOFFREY........................INTERESTED PARTY
RULING
Notice of Preliminary Objection dated 7th March 2014 was filed by M/S Joan W.G. Ndorongo & Co. Advocates for the Objector Elias Njabani on grounds that the matter res judicata as per the judgment of Hon. Justice Anyara Emukule rendered on 7th April 2008 and ruling of Hon Justice Mary Kassango dated 18th May 2011.
The Preliminary Objection was also raised on the grounds that the interested party lacks Locus Standi on the matter since he is titled to any parcel of land originated from the petitioner herein (deceased) and the same was declared null in the ruling of Justice Kasango on 18th May 2011;
The third ground for the Preliminary Objection was that the interested party should lay his claims in the estate of the petitioner (now deceased) Marete Mwirebua;
It was also urged that the parties ought to have appealed against the judgment of Justice Emukule and the ruling of Justice Kasango;
In this matter parcel of land number Mwimbi/Chogoria/525 was ordered to be distributed to Charity Kanyua Mwirebua, Gilbert Kinyua, Elias Njabani Mwirebua and Kamundi Mwirebua. Marete Mwirebua had been settled inter vivos on parcel of land number Mwimbi/Chogoria/561 and Daniel Kaburu Mwirebua had been settled inter vivos on parcel of land number Mwimbi/Murugi/541. The petitioner Marete Mwirebua (deceased) later applied for review of the judgement on distribution delivered on 4th April 2008 but Hon Justice Kasango dismissed the application for reasons it didn’t meet the standard required under order 44 Rule 1 of Civil Procedure Rules. The Hon Judge said the application attempted to appeal against judgment of the court. She relied on the authority ofNjoroge & others vs Savings and Loan Kenya Ltd [1990] eKLR 78 where it was held:-
“In the circumstances an application for review should not be taken as a form of appeal. To warrant a review of an error alleged on the face of record, such an error ought to be so clean as to be without dispute. Where the very existence of an error o record is contestable by parties, I think such a matter is a ground which should be canvassed on appeal.”
In consideration of the Judgement and Ruling on record I do find Replying Affidavit of Patiness Gaturo Marete sworn on 28th June 2012 in opposition to application for confirmation dated 9th August 2012 goes against the finding in the Judgement of Emukule Judge that her husband Marete Mwirebua now deceased was already provided for during the life time of the deceased and therefore could not claim Land parcel no. Mwimbi/Chogoria/525 which was ordered to devolve to the widow Charity Kanyua and her sons Gilbert Kinyua, Elias Njabani and Kamundi Mwirebua. Further affidavit in protest of confirmation by Patiness Gaturo Marete sworn on 29th July 2013 is a replica of the application for review of the judgement of Justice Emukule which was filed by her deceased husband and which was also dismissed.
If Marete Mwirebua (Deceased) sold land to Daniel Murithi Geoffrey then the said purchaser has recourse to the estate of the said Marete Mwirebua and not from L.R. No. Mwimbi/Chogororia/525 and Patiness should comply with the ruling of Justice Kasango by appealing against the judgement of Justice Emukule and desist from filing multiple vexations applications which are only delaying the completion of the cause herein.
It therefore follows that the preliminary objection to the affidavit in protest are valid and same is upheld. The affidavits in protest sworn and filed by Patiness Gaturo Marete are hereby struck out.
Charity Kanyua, Elias Njabani Mwirebua, Kamundi Mwirebua and Gilbert Kinyua to attend court for confirmation of the estate in respect of distribution of parcel of land No. Mwimbi/Murugi/525. Costs of objection to be paid from the estate of the deceased.
Ruling Signed, Delivered and Dated this 16th Day of June 2017.
HON. A. ONG’INJO
JUDGE
In the presence of:
C/A :Penina
Objector:- Nyenyire Advocate H/B for Mutunga advocate
Petitioner:- Mr Carl Peters Mbaabu –
Mr Kitheka Advocate for Interested party –
Order
Mention 2. 8.2017 for confirmation of grant in favour of Charity Kanyua, Elias Njabani, Kamundi Mwirebua and Gilbert Kinyua
HON. A. ONG’INJO
JUDGE