Paul Onsongo & another v Andrew Nyakundi Machongo [2019] KEELC 3443 (KLR)
The bottom line
#A Kisii court struck out a family land dispute because the brothers should have resolved it in their late father's succession case, not a new lawsuit.
What this practically means
#Executive summary
#Key legal issues
#Res judicata in relation to the succession cause
The suit is res judicata because the issues raised were directly and substantially in issue, or ought to have been raised, in Kisii HC Succ. Cause No. 264 of 2000 where the distribution schedule was confirmed
The plaintiffs were named beneficiaries and agreed to the distribution schedule in the certificate of confirmation issued on 9th October 2009 under Section 71 of the Law of Succession Act. Issues touching on the demarcation and subdivision of the estate property properly belonged to that litigation and should have been raised there; the plaintiffs had in fact sought similar orders in the succession cause and were dismissed by Karanja J, who directed them to file a land case or seek revocation of the grant.
Jurisdiction to interfere with a confirmed grant
The court has no jurisdiction to interrogate, vary, review or revoke the grant issued by the succession court
The succession court was properly seized with all aspects of distribution of the estate. The confirmed grant has been given effect, the subdivision effected and each beneficiary allocated their parcels. Only the succession court that issued the grant can revisit it, so the present suit seeking re-subdivision on the basis of ground developments is unsustainable before this court.
Abuse of process and striking out
The plaint constituted an abuse of the process of the court and was struck out in its entirety
Given the prior litigation in the succession cause and the court's lack of jurisdiction, continuing the suit would allow the plaintiffs to litigate afresh matters resolved by a court of competent jurisdiction. Reliance was placed on E.T. v Attorney General and Omondi v National Bank of Kenya that parties cannot evade res judicata by cosmetic re-packaging of the same cause of action.
Suitability of the defendant as a party for acts done as administrator
The defendant cannot be sued for acts done in exercise of his duties as administrator without reverting to the succession court
The defendant's mandate as administrator was executed in accordance with the confirmed grant. If the plaintiffs had issues with the distribution, the appropriate forum was the succession court. Absent any application in the succession cause, the suit against the administrator is unsustainable.
Legal principles established
#- A court without succession jurisdiction cannot vary, review or set aside a certificate of confirmation of grant issued by a succession court
- An administrator's duty ends when he gives effect to the confirmed grant, and beneficiaries must revert to the succession court on any issue touching the succession
- Res judicata extends to issues that properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward
Court orders
#- 1.Declined to adjudicate over the suit for being res judicata
- 2.Ordered that the plaintiffs' plaint dated 4th October 2017 be struck out in its entirety as an abuse of the process of the court
- 3.Awarded the costs of the application and the struck out suit to the defendant
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the land dispute; the court declined jurisdiction to interfere with the succession court's grant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Onsongo & another v Andrew Nyakundi Machongo [2019] KEELC 3443 (KLR)", Case Analysis (2019). Kisii Environment and Land Court (suit over land parcel Nyaribari Masaba/Bonyamasicho/289), plaint dated 4th October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3443/eng@2019-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.