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ELCPartially AllowedNot stated in the judgment· [2015] KEELC 547 (KLR)

Lydia Wathanu Maina & another v Irungu Karuku [2015] KEELC 547 (KLR)

Environment and Land Court
27 March 2015
LWL N WAITHAKA
2,209 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a succession court's decision on who owns family land blocks later claims, even trust claims.

What this practically means

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Executive summary

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The applicant, Irungu Karuku, moved the court by notice of motion dated 22nd August 2014 under Section 7 of the Civil Procedure Act, seeking dismissal of the respondents' suit on the ground that it was res judicata Nyeri High Court Succession Cause No. 195 of 1995, the estate of Kabecha s/o Munyonyo. The suit property, LR Githi/Igana/85, had been the subject of the succession proceedings in which Sergon J, by judgment delivered on 23rd August 2013, found that the deceased had bequeathed the entire land to the applicant inter vivos and confirmed the grant in his favour, rejecting the claim advanced on behalf of David Muthara Maina (since deceased), whose interests the 1st respondent (his mother/widow of the family) and the 2nd respondent (his son) now pursued. The respondents, who filed no reply to the motion but filed written submissions, contended the suit was not res judicata because the succession court lacked jurisdiction over trust questions under Rule 43(2) of the Probate and Administration Rules, that a trust survives the death of a trustee, that the cause of action (declaration of trust) was distinct from administration of the estate, and that they were not parties to the succession cause. The court held that although the trust question was not raised in the succession cause, entitlement to the suit property had been determined there, and to permit the respondents to reopen that entitlement under the guise of a trust would circumvent the earlier judgment and constitute an abuse of court process. Applying Samuel Njau Wainaina v Commissioner of Lands and Madede & Another v Fita, the court found the application merited, allowed it as prayed and dismissed the suit, with costs to the applicant.

Key legal issues

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01

Whether the doctrine of res judicata applies to succession proceedings

Holding

Yes - the succession court's determination of the parties' entitlement to the suit property binds the parties in the subsequent suit; the claim of trust is an attempt to evade the earlier determination.

Reasoning

The court found it not disputed that the suit property was subject of adjudication in the succession cause, in which the trial judge (Sergon J, judgment of 23rd August 2013) held the property had been bequeathed to the applicant inter vivos. Although the trust question was not expressly raised there, the entitlement of the parties was determined. Allowing the respondents to relitigate entitlement under the guise of a trust would circumvent that determination and abuse the court's process. Reliance was placed on Samuel Njau Wainaina v Commissioner of Lands and Madede & Another v Fita, where res judicata applied despite different parties.

p. 4

Legal principles established

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  • A determination on entitlement to suit property in succession proceedings can found a plea of res judicata in a subsequent land suit; parties cannot evade res judicata by introducing new causes of action or parties.

Court orders

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  1. 1.The notice of motion dated 22nd August, 2014 is allowed as prayed
  2. 2.The suit is dismissed as res judicata Nyeri Succession Cause No. 195 of 1995

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 37 Rule 1
  • Probate and Administration RulesRule 43(2)
  • Law of Succession ActSection 2

Cases cited (8)

  • Re Estate of Richard Karanja Javan (DCD)
    [2012] eKLR
  • Tapnyobi Leldayet v. William Kimibei Koromicha
    (2011) eKLR
  • Re Estate of Julius Wachira (Deceased)
    (2013) eKLR
  • Samuel Njau Wainaina v Commissioner of Lands & 6 others
    [2012] eKLR
  • Edwin Thuo v Attorney General & Another
    Nairobi Petition No. 212 of 2012 (Unreported)
  • Omondi v National Bank of Kenya Limited and Others
    [2001] EA 177
  • Njangu v Wambugu and Another
    Nairobi HCCC No. 2340 of 1991 (Unreported)
  • Madede & Another vs Fita & 2 Others
    (1988) KLR 211
Jurisdiction invoked
Section 7 of the Civil Procedure Act (res judicata) - original civil jurisdiction of the High Court/ELC over land claims

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lydia Wathanu Maina & another v Irungu Karuku [2015] KEELC 547 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/547/eng@2015-03-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.