FRANCIS KABAA v NANCY WAMBUI & another [1997] KECA 98 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a fresh succession case filed under a subsisting consent order for a rehearing cannot be blocked as res judicata.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Succession Cause No. 206 of 1994, filed in the High Court, was res judicata
Key legal issues
#Whether Succession Cause No. 206 of 1994 was barred by res judicata
It was not res judicata; the prior cause had been set aside by consent and the matter was to be heard de novo in the High Court, so no earlier decision barred the fresh cause.
The court held that Succession Cause No. 206 of 1994 arose from an unchallenged consent order setting aside Succession Cause No. 46 of 1981 and directing a hearing de novo in the High Court. That order of Mbito, J. still subsisted. Amin, J. confused Civil Suit No. 1055 of 1994 with Succession Cause No. 206 of 1994; Shah, J. had already held that the succession cause was unaffected. Had the pleadings been considered carefully, the res judicata finding would not have been made.
Legal principles established
#- Where a consent order setting aside a prior succession cause and directing a hearing de novo in the High Court subsists, a fresh succession cause filed pursuant to that order cannot be res judicata.
Court orders
#- 1.Appeal allowed with costs to the appellant
- 2.The ruling of Amin, J. that Succession Cause No. 206 of 1994 was res judicata set aside (implied by 'the appeal succeeds')
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 206 of 1994
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Court of Appeal jurisdiction under the Constitution and the Appellate Jurisdiction Act; not expressly stated in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We are of the view that the order of Mbito, J. still subsist and it cannot therefore be said that Succession Cause No. 206 of 1994 was res judicata.
In the result the appeal succeeds with costs for the appellant. It is so ordered.
Issues in the judgment
#Judgment text contains typographical errors, e.g. '206 o f1994' and 'If ht had considered this and the pleadings before him carefully, he would certainly not have held'
Delivery date discrepancy: header of cause and text say judgment dated 13th day of June, 1997 while the appeal is from a ruling of 14th September 1994; the date line reads 'this 13t day of June, 1997' with a typographical error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FRANCIS KABAA v NANCY WAMBUI & another [1997] KECA 98 (KLR)", Case Analysis (1997). Civil Appeal 138 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/98/eng@1997-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.