Robella Betty Ayode Omaido v Elifinias Jackson Ekim Omaindo [2018] KEELC 3531 (KLR)
The bottom line
#A Kenyan court struck out a land claim because the same issues had already been decided, confirming families must raise will disputes in the probate court.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is res judicata as the same issues between the same parties were decided in Kitale ELC No. 11 of 2014
The court compared the present originating summons with the earlier Kitale ELC No. 11 of 2014 and found the issues identical — construction of the wills touching the suit land, trust and partition — and that they had been decided. The only difference was the forum of commencement, the present suit having been filed in the High Court and transferred. Section 7 of the Civil Procedure Act therefore barred the suit.
Jurisdiction of the ELC over wills, dependency and probate matters
The ELC lacks jurisdiction to construe wills and determine dependency; that jurisdiction is exclusively the High Court's under the Law of Succession Act
Relying on the earlier decision in Kitale ELC No. 11 of 2014, the court noted the defendant was registered as owner pursuant to wills of two deceased persons, and the plaintiff's claims could not be addressed without examining those wills. Under the Law of Succession Act it is the High Court which has exclusive jurisdiction over probate and dependency issues.
Entitlement to take out an originating summons under Order 37 Rule 1
The plaintiff is not a person entitled to take out the originating summons under Order 37 Rule 1, the proper route being the probate cause
The court noted the plaintiff was not a personal representative and that Order 37 Rule 1 restricts both the persons who may take out such summons and the questions determinable. The court observed that the plaintiff should have sought interpretation of the wills within Eldoret Probate and Administration Cause No. 154 of 1994 rather than replicating the earlier claim.
Abuse of court process
The proceedings were an abuse of the court process and the originating summons was struck out with costs
Having found the suit res judicata and that the plaintiff had merely replicated the dismissed earlier claim instead of joining the probate cause, the court concluded the proceedings were an abuse of process and struck out the originating summons, awarding costs to the defendant.
Legal principles established
#- A suit whose issues were already decided in a prior suit between the same parties is res judicata under Section 7 of the Civil Procedure Act and constitutes an abuse of the court process
- Only specified persons and specified questions (a)–(g) fall within Order 37 Rule 1 of the Civil Procedure Rules for originating summons
Court orders
#- 1.The plaintiff's originating summons is struck out
- 2.Costs of the suit awarded to the defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (subject matter of the objection); Section 7 of the Civil Procedure Act (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robella Betty Ayode Omaido v Elifinias Jackson Ekim Omaindo [2018] KEELC 3531 (KLR)", Case Analysis (2018). Kitale ELC Case (orig. summons, transferred from High Court) — preliminary objection dated 2/9/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3531/eng@2018-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.