[2017] KEHC 2748 (KLR)

IN THE HIGH COURT OF KENYA AT MURANG’A

SUCCESSION CAUSE NO 739 OF 2015

IN THE MATTER OF THE ESTATE OF KAMAU WARUINGI, DECEASED

WARUINGI KAMAU……………………………...….….…. APPLICANT

VERSUS

KARUGA KAMAU………………………………………RESPONDENT

R U L I N G

1. This ruling concerns the notice of preliminary objection dated 07/12/2015 filed in respect to the summons dated 28/09/2015 for revocation of grant issued and confirmed in Murang’a Succession PM Succession Cause No 230 of 1991in respect to the estate of the Deceased herein, Kamau Waruingi. The Deceased was the father of both the Applicant, Waruingi Kamau and the Respondent, Karuga Kamau, along with others. The Deceased was also survived by his wife Gladys Wambui Kamau who was the mother of his aforesaid children.

2. A history of this dispute will be apt. The history is gathered from the proceedings in the aforesaid Murang’a PM Succession Cause No 230 of 1991, and also from the judgment in Nyeri HC Civil Appeal No 32 of 2003 delivered on 28/11/2008 (Makhandia, J). The Applicant herein was the appellant is that appeal while the Respondent was the respondent. Copies of the said judgment, and also proceedings in Murang’a PM Succession Cause No 230 of 1991, have been exhibited in the pleadings in this matter.

3. And now to the historical background leading to the summons dated 28/09/2015 herein for revocation of grant.

4. As already mentioned elsewhere above, the Deceased herein, Kamau Waruingi, was the father of both the Applicant Waruingi Kamau and Karuga Kamau along with their siblings. Their mother, Gladys Wambui Kamau, also survived the Deceased when he died in 1984.

5. After the Deceased’s death the Applicant herein petitioned for a grant of letters of administration intestate in respect to the Deceased’s estate. This was vide Murang’a PM Succession Cause No 230 of 1991. His brother, the Respondent herein, objected to issuance of such grant. Ultimately the court issued a joint grant to both the Respondent and the Applicant.

6. The Applicant herein subsequently applied for confirmation of that joint grant. The Respondent did not agree with the Applicant’s proposals for distribution and made his own counter-proposals in an affidavit of protest. The issue of who the beneficiaries of the Deceased’s estate ought to be and their respective shares was canvassed by way of a full hearing where the two parties, their mother and other witnesses testified. In a judgment delivered on 28/01/2000 the succession court included a parcel, L.R. LOC. 19/KIAWAMBOGO/1121 registered in the name of the Applicant, as part of the Deceased’s estate. It appeared to treat parcel L.R. LOC 19/KIAWAMBOGO/804 registered in the name of the Respondent also as part of the Deceased’s estate. In ordering distribution of the only parcel of land comprising the Deceased’s estate, L.R. LOC 19/KIAWAMBOGO/1120, the succession court took into account those other two parcels of land.

7. The Applicant appealed against that judgment of the succession court vide Nyeri HC Civil Appeal No 32 of 2003. In its judgment the High Court overruled the lower court’s inclusion of the two other parcels of land owned respectively by the Applicant and the Respondent in the equation of distribution of the Deceased’s estate. The High Court directed that distribution of the Deceased’s estate must be strictly confined to what constituted his free estate, and that was parcel L.R. LOC 19/KIAWAMBOGO/1120 only.

8. As already seen, that judgment of the High Court was delivered on 28/11/2008. Nearly seven (7) years later, on 29/09/2015, the Applicant filed the summons dated 28/09/2015 seeking to revoke the grant made to himself and his brother the Respondent, and confirmed. The Respondent opposed that application by a replying affidavit filed on 11/11/2015.

9. On 08/01/2016 the Respondent filed notice of preliminary objection dated 07/12/2015seeking to have the summons for revocation struck out. The following grounds are listed in the said notice –

(i) That the application as filed is frivolous, vexatious and an abuse of the process of the court.

(ii) That the Applicant cannot properly seek revocation of his own grant that he sought and obtained.

(iii) That Murang’a PM Succession Cause No 230 of 1991 proceeded to full hearing upon the Applicant’s own application for confirmation of grant and judgment was delivered on 28/01/2000.

(iv) That the Applicant then appealed vide Nyeri HC Civil Appeal No 32 of 2003 against the judgment of the succession court, and the appellate court delivered its judgment on 28/11/2008.

(v) That the Applicant cannot now seek to litigate the same issues that were litigated in the succession court and in the appeal.

10. The preliminary objection was canvassed by way of written submissions. The Respondent’s submissions were filed on 11/10/2016 while those of the Applicant were filed on 19/06/2017. I have read and considered those submissions.

11. It is clear from the Applicant’s affidavit sworn in support of the summons for revocation of grant, and also from his submissions, that he is seeking to re-litigate the issues that were canvassed and decided in Murang’a PM Succession Cause No 230 of 1991 and in Nyeri HC Civil Appeal No 32 of 2003. Those issues were broadly, one, the extent of the estate of the Deceased herein (specifically whether the estate extended beyond land parcel L.R. LOC. 19/KIAWAMBOGO/1120 to include land parcels L.R. LOC. 19/KIAWAMBOGO/1121 and L.R. LOC. 19/KIAWAMBOGO/804; and, two, who the persons beneficially entitled to that estate were and their respective shares.

12. Those issues were canvassed before the succession court by way of oral evidence where parties cross-examined each other and their witnesses. A considered judgment was rendered by the court. An appeal against that judgment (and decree) was lodged by the Applicant herein. The High Court, in an 18-page, font 16, 1. 5 spacing judgment, appraised afresh the issues and came to its own conclusions regarding them.

13. This court will not countenance the re-opening of that litigation for any reason at all, and least of all, to enable the Applicant to have a second bite at the cherry! Litigation must come to an end, and people cannot litigate endlessly. They should be able to move on with their lives, leaving behind any unpleasant, or even unjust, memories. Life must go on!

14. I am satisfied, without hesitation, that the Applicant’s summons dated 28/09/2015 for revocation of grant, in the circumstances of this case, is misconceived, mischievous and an unacceptable abuse of the process of the court. It is hereby struck out with costs to the Respondent. It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 12TH DAY OF OCTOBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 13TH DAY OF OCTOBER 2017