Automated Summary
Key Facts
The case involves the intestate estate of Joshua Githehu, who died in 1971, with seven polygamous houses and numerous children. The Applicants (Stephen Mbiria Nduta, Josiah Wanene Nduta, Irene Mugure Nduta) sought to claim a portion of the Limuru/Kamirithu/3150 land parcel, which they had occupied for over 20 years. The Respondents objected, arguing the application was Res Judicata based on a prior 2020 ruling. The court dismissed the Res Judicata claim but struck out the 2023 application, determining it concerned non-estate property and should be heard in the Environmental and Land Court under Article 162(2)(b) of the Kenyan Constitution. The 2000 consent order on estate distribution excluded the disputed land parcel from the estate assets.
Deceased Name
Joshua Mbira Githehu
Issues
- The court determined that the Applicants' request to register and protect their interest in non-estate land (Parcel 3150) falls outside the scope of the Succession Cause and must be addressed in the Environmental and Land Court, as mandated by Article 162(2)(b) of the Constitution of Kenya 2010.
- The court evaluated if the current application (12th April 2023) was Res Judicata, considering a prior 2020 ruling that dismissed a related case involving the same parties and distribution of the 3rd House's estate. The court concluded the 2023 application does not pertain to the estate's distribution and thus is not bound by the 2020 decision.
Date of Death
1971 May 23
Holdings
- The court found that the application dated 12th April, 2023 is not res judicata as it does not relate to the distribution of estate property. However, the court determined that the application dealing with non-estate property (Plot 3150 Limuru) cannot be prosecuted under this succession cause and must be filed in the Environmental and Land Court.
- The court ruled that each side will bear their own costs in this family matter.
Remedies
- The application dated 12th April, 2013 is struck out as it is Res Judicata.
- Each party to bear their own costs in this family matter.
Will Type
Intestacy
Probate Status
Letters of Administration granted to Public Trustee in 1984, confirmed in 2000 and varied in 2007
Legal Principles
The court applied the principle of Res Judicata under Section 7 of the Civil Procedure Act to determine whether the Applicants' Notice of Motion dated 12th April, 2023 was barred by a prior final judgment. The court referenced the 2020 ruling dismissing a similar application and held that the current application was res judicata as the same issues had been previously determined. However, it clarified the motion did not meet all res judicata criteria since the property at issue (Parcel 3150) was not part of the estate distribution, but ultimately struck the application on res judicata grounds.
Succession Regime
Kenyan Succession Law for Intestate Estate under the Succession Act
Precedent Name
- Aviation & Allied Workers Union Kenya -vs- Kenya Airways Limited & 3 Others
- William Koross -vs- Hezekia Kiptoo Komen & Others
- Mukisa Biscuit Manufacturing Company Ltd -vs- West End Distributors Ltd
Executor Name
Public Trustee
Cited Statute
- Constitution of Kenya 2010
- Civil Procedure Act, Cap 21
Executor Appointment
Court Appointed (Grant of letters of Administration Intestate made on 1st March 1984)
Judge Name
Maureen A. Odero
Passage Text
- 28. However, having said that I do find that the application dated 12th April, 2023 which deals with non-estate property cannot be prosecuted under this succession cause. If the Applicants wish to protect their interest in Plot 3150 Limuru then the correct forum for them to file their claim is in the Environmental and Land Court...
- 29. I therefore find that the issues raised in the Notice of Motion dated 12th April, 2013 are Res Judicata. As such the said application is hereby struck out.
Beneficiary Classes
- Spouse / Civil Partner
- Child / Issue