[2022] KEHC 13387 (KLR)

Njuguna v Ndungu (Succession Cause 1131 of 1992) [2022] KEHC 13387 (KLR) (Family) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13387 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1131 of 1992

AO Muchelule, J

October 4, 2022

Between

George Kuria Njuguna

Applicant

and

Ruth Muthoni Ndungu

Respondent

Ruling

1. The deceased Njuguna Karanja died on April 9, 1992 at the Kenyatta National Hospital. He left a written will that was executed on March 31, 1992. In the will he appointed Hamphrey (Gibbs Harris) Mwai Waithaka as the executor. He left various properties. The will indicated how the properties were to be shared upon his death.

2. On November 3, 1992 the executor was issued a grant of probate with written will. There is no dispute that the deceased had two wives: Wamu Njuguna and Beatrice Wangari Njuguna. Each had a son. The applicant George Kuria Njuguna is son to the second wife Beatrice Wangari Njuguna.

3. The grant was confirmed on June 4, 1999.

4. On May 25, 2000 the deceased’s widow Beatrice Wangari Ndungu and her son (the applicant herein) sought the revocation of the grant on the basis that at the time of the said will the deceased was too sick to make the will; that the alleged will have been made a secret and not disclosed to them at burial and thereafter; that the proceedings leading to the grant had been secretly done; that the deceased could not have made the will that had given part of the estate to people who were not his sons, and who had not taken care of him in old age; that the deceased could not have given Fort Hall Loc 5/Kagundu-ini/XXXX (presently Nos XXXX) to another person as he had given to him the parcels in 1983 and he had developed his home thereon; and the deceased could not have given Fort Hall Loc 5/Kagundu-ini XXXX (now Nos XXXX), Makuyu/Makuyu/Block-XXXX and 3 plots at Ngewa Githunguri to Samuel Ndungu Mbirru of the first house to his exclusion. The application was opposed by the executor. The application was orally heard by Justice HPG Waweru who on November 12, 2003 found it without merit and dismissed it with costs.

5. On January 9, 2004 the applicant sought the review and setting aside of the ruling of November 12, 2003 on the basis that he had come by new facts; that the will did not include some properties, and that the properties that had been given to him did not exist. The application was on October 22, 2008 found to be unmeritorious and was dismissed with costs. He was advised that if there were properties of the deceased that had been excluded from the will they should be the subject of intestate succession.

6. The applicant has a new application dated September 10, 2021 seeking the revocation of the grant that was issued to the executor on September 4, 1999 and rectified on June 29, 2009. He further seeks that the transfer and/or registration of parcels Loc5/Kagundu-ini/XXXX, Loc5/Kagundu-ini/XXXX and Makuyu/ Makuyu/Block1/XXXX to the respondent Ruth Muthoni Ndungu be annulled and/or cancelled. The respondent was the widow of the deceased’s son Samuel Ndungu Mbirru who died on May 25, 1998. She inherited what had been bequeathed to her late husband.

7. The grounds upon which the application was brought were that:-(a)the deceased did not have a will,(b)the signature of the deceased on the will was forged,(c)the deceased was not physically fit and lacked the capacity to make the will, and that(d)the beneficiaries of the deceased were not informed when the succession cause was mounted.

8. The respondent opposed the application by filing summons dated October 29, 2021 seeking the striking out of the applicant’s application on the basis that it was res judicata and that, since all the executors and all the witnesses to the will had died, bringing the application against her this late in the day would offend her right to a fair trial under article 50 of the Constitution as she would not be able to adequately defend the application and therefore would suffer prejudice.

9. The applicant informed the court that he had on July 10, 2021 subjected the will to examination by the forensic documents examiner Mr Emanuel Karisa Kenga who had, on comparing with the deceased’s known signature, found it to be forged. He had obtained the deceased’s known signatures from documents he had come by. The documents were in the possession of the petitioner (executor).

10. The respondent is complaining that the application has been brought too late in the day, 30 years after the grant of probate and 22 years after the grant was confirmed. I find that this complaint is valid. The applicant does not say when it is that he came by documents of the deceased that he eventually took to the documents examiner. When was it, in relation to when he took the will for forensic examination? From day one, his case was that the deceased did not make the will because he lacked capacity, and because he did not see how the deceased could have bequeathed his property to people who were not his sons like him. From day one, he suspected the will was made up by the executor or the deceased’s son by the first wife. Why did he not consider forensic examination of the will at the time he brought the application for revocation in 2000? If the executor was holding the deceased’s known signatures, why did he not seek the court’s assistance to retrieve them? I am mindful that at the time, like now, the applicant had counsel!

11. I have raised all these questions to be able to find that the application for revocation is not based on any new grounds. Section 7 of the Civil Procedure Act provides that:-'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. 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.Explanation.(4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.'

12. The application by the applicant has been caught up by the doctrine of res judicata as the grounds upon which it is based are substantially the same ones that were in issue in the application dated May 25, 2000, which application was heard by a competent court and determined against him. His bid to have the determination reviewed failed. The court cannot allow the re-litigation of the same issues, as there has to be and end to litigation(IEBC v Maina Kiai & 5 Others [2017] eKLR.

13. It is also trite that parties cannot evade the doctrine of res judicata by adding new parties or adding new grounds or causes of action in a subsequent suit or application (George Omondi & Another v National Bank of Kenya & 2 Others [2001]eKLR. The applicant cannot be allowed to litigate in instalments. He was supposed to bring for determination all his case at once. What he is presently doing is to vex the respondent, which the court cannot allow.

14. I also agree with the respondent that the applicant waited for far too long to bring the application. Secondly, he waited until all the possible witnesses to the fact of the will were dead before coming to court on the present application. He is guilty of laches, and entertaining the application in the absence of these witnesses will compromise the respondent’s right to a fair trial under article 50 of the Constitution.

15. For these reasons, I dismiss the applicant’s application with costs and allow the respondent’s application with costs.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 4TH DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE