[2017] KEHC 955 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 838 OF 1990

IN THE MATTER OF THE ESTATE OF GILBERT IKENYAGATHUO

ALIASGILBERT GATHUO IKENYA (DECEASED)

NASARENA WANGARI GATHUO.....................................................PETITIONER

VERSUS

FRANCIS KAHIGA GATHUO.................1ST INTRESTED PARTY/APPLICANT

SAMUEL IKENYA GILBERT GATHUO...2ND INTRESTED PARTY/APPLICANT

AND

MARY MUTHONI GATHUO..................................................1ST RESPONDENT

JOHN HINGA GATHUO.......................................................2ND RESPONDENT

JOHN HINGA GATHUO......................................................3RD RESPONDENT

RULING

1. The application for consideration is the Notice of Preliminary Objection dated 20th September 2016. The same is premised on grounds that;

i. The application dated 21st April 2016 offends provisions of Rule 44(1) Probate and administration Rules which provides that an application brought under Section 76 of the Law of succession Act shall be summons in Form 107 and shall be issued by the registry of the particular High Court.

ii. That the application dated 21st April 2016 offends the provisions of Rule 44(2) of the Probate and administration.

iii. That the application is time barred and does not lie in law

iv. That the issue to be canvassed in support of the said application are res judicata the same having been directly in issue between, inter alia, the same parties herein in ELC No. 658 of 2015.

v. That the application is an abuse of the Court process and should be dismissed with cost.

2. The application is opposed and the respondents file grounds of opposition filed on 5th October 2017 on grounds that;

i. The applicants are seeking to annul a grant issued and confirmed to the petitioner who was deceased even before the suit was filed and the estate distributed.

ii. The applicants being aggrieved by how the petitioner distributed the estate held in trust should not be making an application for the annulment but determination of the suit.

iii. The suit filed is fatally defective as the petitioner herein is deceased and no personal representative have been appointed to represent her estate.

iv. The applicants seek orders as against the respondents other than the personal representative of the estate of Gilbert Ikenya Gathuo.

v. The estate of Gilbert Ikenya Gathuo was confirmed and distributed to Nazarene Wangari Gathuo (wife) to hold in trust for both the applicant and the respondents herein and by the time she passed on the issue of trust had been dissolved.

vi. That the matter should relate to the Estate of Nazarene Wangari Gathuo for determination of the issue of trust.

3. The 1st respondent in their written submissions submits that the petitioner herein died on 19th June 2014. The respondents herein are the children of the petitioner who was the administrator of the estate of their late father Gilbert Gathuo. That the grant the applicants seek to revoke was confirmed on 7th May 1991 wherein the petitioner was to hold the properties therein in trust for the children of the deceased which she did until her demise. That the actions being questions relate to actions by Nasera Wangari Gathuo who is since deceased but before then had relieved herself of the trust by distributing the same to the beneficiaries. That what the applicants ought to do is pursue their claim as against the representatives of Nasera Wangari Gathuo’s estate or cite the respondents to obtain letters of administration to enable them respond to the allegations raised. That as it stands the respondents are not personal representatives of Nasera and as such no orders can be granted against them.

4. On section 76 of the Law of Succession Act having been not been satisfied it was submitted that the application cannot stand as the same is entirely premised on the grounds that the petitioner had not dissolved the trust. This they submit does not call for revocation of grant as the applicants have not indicated anywhere that the petitioner obtained the grant by way of fraud concealment of material fact, proceedings leading to the grant were defective in substance or the person that made the same had failed. That the crucial elements aforementioned have failed and so should the application.

5. The interested parties in their submissions sought to rely in the case of Henry Wanyama Khaemba vs Standard Chartered –vs- Standard Chartered Bank (K) Limited & Another [2014] eKLrwhere Justice Gikonyo adopted the threshold for preliminary objection set in Mukisa Biscuit Manufacturing Co. Limited va West End Distributors Limited [1969] E.A. 969where Sir Charles New Bold P held that “preliminary objection is in the nature what used to be demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. it cannot be raised is any of the facts has to be ascertained or if what is sought is the exercise of judicial discretion.”

6. They further relied on the case ofOraro vs Mbajja [2005] eKLRwhere it was held that, “A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.”

7. It was submitted that Justice Gikonyo in his decision argued that the issue of proving res judicata would require adduction of evidence hence not purely a point of law. That section 7 of the Civil Procedure Act provides, “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 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.”

8. On the issue of Res judicata it was submitted that the same was raised by objectors without laying basis that no supporting affidavit evidence was tendered. That a casual look at the suit in ELC no. 658 of 2015 was brought by the 1st interested party seeking his share of compensation on his shops which was paid by KPLC. That the issues raised in the said suit are not similar to this suit as the 2nd interested party is not a party to either. Further that the issues in the ELC suit 658 of 2015 are not the same as the issues raised in this court. Further that the suit was filed prior to the ELC suit relating to the issue Estate of Gilbert Gathuo Ikenye and can only be ventilated under this suit and not any other. That the rules are only substantive dealing with all issues relating to succession of estates and also provide specifically what can be imported from the Civil Procedure Rules. The form for Summons and Summons general ad summons for revocation are specific ally provided for under the rules and if the objectors are aggrieved by the existence of the case ELC No. 658 of 2015 the same having been subsequently filed. It was further submitted that under section 76 of the Law of Succession Act there is no time limit for when a person can file for revocation of grant. Section 76 provides, “A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion….”.Further, that the preliminary objection raised does not meet the threshold provided under Section 7 of the Civil Procedure Act. It was submitted that the Summons for Revocation of Grant both dated 21st April 2016 are neither frivolous nor vexatious they are merited and grounded on sound legal principles and the same cannot be said to be an abuse of the court process.”

Determination

9. The principles of preliminary objective are set down in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696, where it was held 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. 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.”

10. The respondents have raised the preliminary objection on grounds that the matter is res judicata as issues raised have also been raised in another case before the Land and Environment Court in ELC 658 of 2016. 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.”

11. Rule 44(1) Probate and Administration Rules provides that,

Part (1) The provisions of this Part shall not, in cases of intestacy, apply to those types of property mentioned in section 32 which excludes certain property in intestacy namely (a) agricultural land and crops thereon; or (b) livestock k”. It is important to note that this provision is only applicable to only certain Districts set out in the schedule. In regards to this I find the applicant is misguided as the same does not apply in this case.

12. 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.’’

13. The doctrine implies that for a matter to be res judicata, the matters in issue must be similar to the ones which were previously in dispute between the same parties and the same having been determined on merits by a Court of competent jurisdiction. The 2nd respondent argues that the matter before the Land and Environment court is yet to be concluded and that the same was filed by the 1st interested party and he is not a party to the same. A look at the copy of plaint attached in the said application it is clear that the 2nd interested party is not a party in the said suit.

14. From the foregoing it is clear that the matter is yet to be concluded and is still pending determination before the said court as such I find that the matter has not met the requirements to be considered as res judicata. I therefore find that the preliminary objection raised fails. Cost of the suit. It is so ordered.

Dated, Signed and delivered this 4th day of December 2017.

R. E. OUGO

JUDGE

In the presence of: -

Petitioner Absent

Mr. Waititu h/b for Mr. Mahinda 1st and 2nd Interested parties /Applicants

1st Respondent Absent

Mr. Machina h/b for Mr. Wandungi For the 2nd and 3rd Respondents

Ms. Charity Court Clerk