' (Being an appeal from the ruling delivered on 28 th August 2024 by Hon. Ombija in Keroka MCSUCC NO. E023 of 2021)
A. Background
Nyatuka Oenga (the deceased), was the mother to the Respondent, Zablon Oenga , and grandmother to the Appellants, who are sons of the late Samuel Nyabuto Oenga , a son of the deceased.
The respondent successfully petitioned for grant of letters of administration intestate in respect to the deceased’s estate which was issued on 30th November 2021 and confirmed on 12th April 2023. The appellants’ initial objection dated 31st October 2022 was dismissed for want of form.
The Appellants subsequently filed an application dated 6th August 2024 seeking revocation/annulment of the confirmed grant issued to the respondent and their inclusion as beneficiaries to the estate. The trial court dismissed the application summarily, holding that it was unmeritorious and an abuse of court process thus prompting the filing of this appeal where the appellants raised the following key grounds: -
That the trial court violated their right to be heard by making orders without hearing the appellants or affording them an opportunity to be heard, thereby contravening the principles of natural justice.
That the impugned orders were issued prematurely before responses were filed effectively denying the appellants fair procedural treatment.
That the trial court misdirected itself on the existence and confirmation of grant by failing to appreciate that letters of administration intestate had been issued on 30th November 2021, and an application for confirmation dated 11th August 2022 had been filed but the court nonetheless proceeded to dismiss the appellants’ application dated 6th August 2024, thereby causing a miscarriage of justice.
That the trial magistrate failed to consider and evaluate the appellants’ application and the issues raised therein, leading to an erroneous and unjust decision.
That the magistrate erred by failing to issue directives transparently in open court in the presence of counsel for the applicants and instead dismissed the matter in chambers, contrary to proper judicial procedure.
That the application was dismissed prematurely without substantive consideration of its merits.
That the overall decision of the trial magistrate was unjust, legally untenable, unsupported by the facts and contrary to established legal principles. The appellants pray for the following orders in the appeal: -
a) The appeal be allowed, and the ruling/order of 28th August 2024 be set aside and/or quashed;
b) The application dated 6th August 2024 be allowed; and
c) The costs of the appeal be borne by the respondent, along with any further relief the court deems just.
The Appeal was canvassed by way of written submissions which I have considered.
B. Appellants’ Submissions
The appellants submitted that they are lawful beneficiaries under Section 29 of the Law of Succession Act (the Act) as grandsons of the deceased through their late father.
They contended that the respondent deliberately omitted their names from succession cause (E023 of 2021) so as to disinherit them. They faulted the trial court for dismissing their application of 6th August 2024 without affording them a hearing, contrary to the provisions of Article 50(1) of the Constitution on the right to a fair hearing.
It was submitted that the grant confirmed on 12th April 2023 was fraudulently obtained through concealment of material facts.
C. Respondent’s Submissions
The respondent, on the other hand, opposed the appeal and stated that he is the lawful administrator of the estate, having been issued with a grant of letters of administration intestate on 30th November 2021 which grant was confirmed on 12th April 2023. He argued that the appellants’ objection dated 31st October 2022 was dismissed for non-compliance and that their subsequent application for revocation was filed over a year after confirmation, hence res judicata and an abuse of court process.
The respondent asserted that the record of appeal is defective, as it does not contain a confirmed grant or Form P&A 54, thus violating Order 42 Rule 13(4)(e) of the Civil Procedure Rules. It was the respondent’s case that the appeal is founded on a non-existent grant and is therefore incompetent ab initio. He relied on the decision in Oyach & Another v Otieno (Civil Appeal E081 of 2021) [2022] KEHC 14457 (KLR) , where the court held that: -
“Documents that were not part of the record before the trial court cannot be relied upon by the appellate court.”
The respondent denied the allegation that he intended to disinherit the Appellants and cited the Supporting Affidavit for Confirmation of Grant dated 11th August 2022, wherein he included the appellants’ late father’s share and distributed it among his widow and children, including the appellants.
The respondent submitted that the trial court was entitled to confirm the grant under Section 68(1) and (2) of the Law of Succession Act and Rule 68 of the Probate and Administration Rules, since the objectors had failed to prosecute their objection. He cited In Re Estate of M’mwongo Kichiu (Deceased) [2024] KEHC 7724 (KLR) , where the court held: -
“Where an objector fails to proceed with his objection with diligence, the court is entitled to proceed to confirm the grant… the objectors herein were given ample opportunity but they squandered it.”
According to the respondent the appellants’ 2024 application sought to reopen a matter which is already settled thus contravening the res judicata principle and amounting to abuse of process. He relied on Patrick Ngumbao Mweni vs. Richard Kipkemei Limo & 4 others [2021] eKLR , where the court held:
“Finality in litigation is a fundamental principle of law. Once a dispute has been determined by a competent court, it should not be reopened except through an appeal or other due process. It is in the public interest that litigation should come to an end.”
On the claim that the Appellants were not given a hearing, the respondent submitted that the application was dismissed at the mention stage because the appellants had repeatedly failed to comply with court’s directions. It was the respondent’s case that the trial court acted within its inherent power to dismiss frivolous applications.
D. Issues for Determination
Having considered the record, the parties’ submissions, and the applicable law, I find that the following issues arise for determination: -
Whether the appellants were denied a fair hearing contrary to Article 50(1) of the Constitution.
Whether the application dated 6th August 2024 was properly dismissed as res judicata and an abuse of process.
Whether the appeal is competent and supported by a valid record of appeal.
Whether the appellants are beneficiaries entitled to a share in the estate of the late Nyatuka Oenga.
E. Analysis and Determination
Right to Fair Hearing
The court record shows that Summons for Confirmation was set down for hearing on 25 th October 2022 when the matter was adjourned to 1 st November 2022 after the court noted that only 3 beneficiaries were present in court. The matter was thereafter adjourned on 2 occasions before being fixed, by consent, for hearing on 18 th January 2023.
The case was thereafter once again adjourned on 3 occasions mainly at the behest of the Appellants who insisted that they needed time to file amended pleadings. When the matter came up for mention on 12 th April 2023, the trial court noted that the Appellants had not complied with the orders to file amended pleadings and rendered itself as follows: -
“Date was taken by consent, indeed it is clear and demonstrated that the objectors through their counsel are not keen at having this matter settled and or concluded to its logical end. In that regard therefore, this court strikes out the grounds of objection raised for want of form. I therefore proceed to confirm the grant accordingly. Matter marked as closed.”
I note that a subsequent application, by the Appellants, for revocation of grant, was summarily dismissed, suo moto by the trial court, in the absence of both parties. During the said dismissal, the trial court held that the said application had been overtaken by events. As I have already stated in this judgment, the dismissal gave rise to the present appeal.
From the above narration of the sequence of events that took place before the trial court, it is clear that the Appellants were not granted an opportunity to prosecute their application for revocation of grant as the trial court dismissed it suo moto . The order indicates no appearance for either party, and that the dismissal was grounded on the phrase “application overtaken by events.” I find that the procedure adopted by the trial court was irregular and contrary to the well-established right to be heard, a cardinal principle of natural justice enshrined under Article 50(1) of the Constitution, which guarantees every person the right to have any dispute determined in a fair and public hearing.
In Onyango Oloo vs. Attorney General [1986-1989] EA 456 , the Court of Appeal emphasized that: -
“A decision reached in violation of the principles of natural justice is void for want of jurisdiction.”
Similarly, in Pashito Holdings Ltd & Another vs. Paul Nderitu Ndungu & 2 Others [1997] eKLR , the Court held that a party must be afforded a reasonable opportunity to be heard before any adverse orders are made.
My finding is that the trial magistrate’s act of dismissing the application without affording the appellants a hearing was therefore a fundamental procedural error. The lower court ought to have directed that the Respondent files a replying affidavit and set the matter down for inter partes hearing before making any determination.
I further find that the trial magistrate acted in excess of jurisdiction by determining the matter summarily and thereby breached the Appellants’ constitutional right to a fair hearing.
On whether the doctrine of res judicata is applicable in this case, the Respondent argued that the application for revocation was res judicata, having been determined previously. I however note that the record of the lower court contains no prior application for revocation of grant; the only previous matter was an objection dated 31st October 2022, which was dismissed for want of form and not determined on its merits.
The doctrine of res judicata under Section 7 of the Civil Procedure Act applies only where the same matter has been heard and finally determined by a court of competent jurisdiction. In E.T vs. Attorney General & Another [2012] eKLR , the court held that: -
“The doctrine of res judicata applies only where the previous decision was a final determination on the merits of the case.”
Similarly, in John Florence Maritime Services Ltd & Another vs. Cabinet Secretary for Transport & Infrastructure & 3 others [2015] eKLR , the Court of Appeal reiterated that res judicata does not apply to applications dismissed on procedural grounds.
I find that since the appellants’ earlier objection was dismissed on a technicality, on account of want of form, and not on the substance of their claim, the subsequent application could not be deemed to be res judicata. It is my finding that the trial court’s reliance on the doctrine of res judicata was misconceived and erroneous.
From the foregoing findings, I am persuaded that the trial court erred in law and in fact by dismissing the appellants’ application without hearing them and misapplying the doctrine of res judicata to bar an application that had not been heard on merits. My above findings are sufficient to dispose of this appeal and I do not have to venture into or belabour the remaining issues of the validity of the record of appeal or the appellants’ entitlement to the share of the estate.
I find that the appropriate remedy is therefore to set aside the ruling of 28th August 2024 and reinstate the appellants’ application dated 6th August 2024 for hearing on its merits before a different magistrate other than Hon. Ombija.
In the end, I find that the appeal has merit and is hereby allowed. Accordingly, I make the following orders:
The ruling and order of the learned Senior Resident Magistrate, Hon. C. Ombija, dated 28th August 2024, in Keroka MCSUCC No. E023 of 2021, is set aside.
b) The appellants’ application dated 6th August 2024 for revocation/annulment of grant is hereby reinstated for hearing on the merits before a different magistrate other than Hon. Ombija.
c) The appeal is allowed with no orders as to costs.
'
A. Background
Nyatuka Oenga (the deceased), was the mother to the Respondent, Zablon Oenga , and grandmother to the Appellants, who are sons of the late Samuel Nyabuto Oenga , a son of the deceased.
The respondent successfully petitioned for grant of letters of administration intestate in respect to the deceased’s estate which was issued on 30th November 2021 and confirmed on 12th April 2023. The appellants’ initial objection dated 31st October 2022 was dismissed for want of form.
The Appellants subsequently filed an application dated 6th August 2024 seeking revocation/annulment of the confirmed grant issued to the respondent and their inclusion as beneficiaries to the estate. The trial court dismissed the application summarily, holding that it was unmeritorious and an abuse of court process thus prompting the filing of this appeal where the appellants raised the following key grounds: -
That the trial court violated their right to be heard by making orders without hearing the appellants or affording them an opportunity to be heard, thereby contravening the principles of natural justice.
That the impugned orders were issued prematurely before responses were filed effectively denying the appellants fair procedural treatment.
That the trial court misdirected itself on the existence and confirmation of grant by failing to appreciate that letters of administration intestate had been issued on 30th November 2021, and an application for confirmation dated 11th August 2022 had been filed but the court nonetheless proceeded to dismiss the appellants’ application dated 6th August 2024, thereby causing a miscarriage of justice.
That the trial magistrate failed to consider and evaluate the appellants’ application and the issues raised therein, leading to an erroneous and unjust decision.
That the magistrate erred by failing to issue directives transparently in open court in the presence of counsel for the applicants and instead dismissed the matter in chambers, contrary to proper judicial procedure.
That the application was dismissed prematurely without substantive consideration of its merits.
That the overall decision of the trial magistrate was unjust, legally untenable, unsupported by the facts and contrary to established legal principles. The appellants pray for the following orders in the appeal: -
a) The appeal be allowed, and the ruling/order of 28th August 2024 be set aside and/or quashed;
b) The application dated 6th August 2024 be allowed; and
c) The costs of the appeal be borne by the respondent, along with any further relief the court deems just.
The Appeal was canvassed by way of written submissions which I have considered.
B. Appellants’ Submissions
The appellants submitted that they are lawful beneficiaries under Section 29 of the Law of Succession Act (the Act) as grandsons of the deceased through their late father.
They contended that the respondent deliberately omitted their names from succession cause (E023 of 2021) so as to disinherit them. They faulted the trial court for dismissing their application of 6th August 2024 without affording them a hearing, contrary to the provisions of Article 50(1) of the Constitution on the right to a fair hearing.
It was submitted that the grant confirmed on 12th April 2023 was fraudulently obtained through concealment of material facts.
C. Respondent’s Submissions
The respondent, on the other hand, opposed the appeal and stated that he is the lawful administrator of the estate, having been issued with a grant of letters of administration intestate on 30th November 2021 which grant was confirmed on 12th April 2023. He argued that the appellants’ objection dated 31st October 2022 was dismissed for non-compliance and that their subsequent application for revocation was filed over a year after confirmation, hence res judicata and an abuse of court process.
The respondent asserted that the record of appeal is defective, as it does not contain a confirmed grant or Form P&A 54, thus violating Order 42 Rule 13(4)(e) of the Civil Procedure Rules. It was the respondent’s case that the appeal is founded on a non-existent grant and is therefore incompetent ab initio. He relied on the decision in Oyach & Another v Otieno (Civil Appeal E081 of 2021) [2022] KEHC 14457 (KLR) , where the court held that: -
“Documents that were not part of the record before the trial court cannot be relied upon by the appellate court.”
The respondent denied the allegation that he intended to disinherit the Appellants and cited the Supporting Affidavit for Confirmation of Grant dated 11th August 2022, wherein he included the appellants’ late father’s share and distributed it among his widow and children, including the appellants.
The respondent submitted that the trial court was entitled to confirm the grant under Section 68(1) and (2) of the Law of Succession Act and Rule 68 of the Probate and Administration Rules, since the objectors had failed to prosecute their objection. He cited In Re Estate of M’mwongo Kichiu (Deceased) [2024] KEHC 7724 (KLR) , where the court held: -
“Where an objector fails to proceed with his objection with diligence, the court is entitled to proceed to confirm the grant… the objectors herein were given ample opportunity but they squandered it.”
According to the respondent the appellants’ 2024 application sought to reopen a matter which is already settled thus contravening the res judicata principle and amounting to abuse of process. He relied on Patrick Ngumbao Mweni vs. Richard Kipkemei Limo & 4 others [2021] eKLR , where the court held:
“Finality in litigation is a fundamental principle of law. Once a dispute has been determined by a competent court, it should not be reopened except through an appeal or other due process. It is in the public interest that litigation should come to an end.”
On the claim that the Appellants were not given a hearing, the respondent submitted that the application was dismissed at the mention stage because the appellants had repeatedly failed to comply with court’s directions. It was the respondent’s case that the trial court acted within its inherent power to dismiss frivolous applications.
D. Issues for Determination
Having considered the record, the parties’ submissions, and the applicable law, I find that the following issues arise for determination: -
Whether the appellants were denied a fair hearing contrary to Article 50(1) of the Constitution.
Whether the application dated 6th August 2024 was properly dismissed as res judicata and an abuse of process.
Whether the appeal is competent and supported by a valid record of appeal.
Whether the appellants are beneficiaries entitled to a share in the estate of the late Nyatuka Oenga.
E. Analysis and Determination
Right to Fair Hearing
The court record shows that Summons for Confirmation was set down for hearing on 25 th October 2022 when the matter was adjourned to 1 st November 2022 after the court noted that only 3 beneficiaries were present in court. The matter was thereafter adjourned on 2 occasions before being fixed, by consent, for hearing on 18 th January 2023.
The case was thereafter once again adjourned on 3 occasions mainly at the behest of the Appellants who insisted that they needed time to file amended pleadings. When the matter came up for mention on 12 th April 2023, the trial court noted that the Appellants had not complied with the orders to file amended pleadings and rendered itself as follows: -
“Date was taken by consent, indeed it is clear and demonstrated that the objectors through their counsel are not keen at having this matter settled and or concluded to its logical end. In that regard therefore, this court strikes out the grounds of objection raised for want of form. I therefore proceed to confirm the grant accordingly. Matter marked as closed.”
I note that a subsequent application, by the Appellants, for revocation of grant, was summarily dismissed, suo moto by the trial court, in the absence of both parties. During the said dismissal, the trial court held that the said application had been overtaken by events. As I have already stated in this judgment, the dismissal gave rise to the present appeal.
From the above narration of the sequence of events that took place before the trial court, it is clear that the Appellants were not granted an opportunity to prosecute their application for revocation of grant as the trial court dismissed it suo moto . The order indicates no appearance for either party, and that the dismissal was grounded on the phrase “application overtaken by events.” I find that the procedure adopted by the trial court was irregular and contrary to the well-established right to be heard, a cardinal principle of natural justice enshrined under Article 50(1) of the Constitution, which guarantees every person the right to have any dispute determined in a fair and public hearing.
In Onyango Oloo vs. Attorney General [1986-1989] EA 456 , the Court of Appeal emphasized that: -
“A decision reached in violation of the principles of natural justice is void for want of jurisdiction.”
Similarly, in Pashito Holdings Ltd & Another vs. Paul Nderitu Ndungu & 2 Others [1997] eKLR , the Court held that a party must be afforded a reasonable opportunity to be heard before any adverse orders are made.
My finding is that the trial magistrate’s act of dismissing the application without affording the appellants a hearing was therefore a fundamental procedural error. The lower court ought to have directed that the Respondent files a replying affidavit and set the matter down for inter partes hearing before making any determination.
I further find that the trial magistrate acted in excess of jurisdiction by determining the matter summarily and thereby breached the Appellants’ constitutional right to a fair hearing.
On whether the doctrine of res judicata is applicable in this case, the Respondent argued that the application for revocation was res judicata, having been determined previously. I however note that the record of the lower court contains no prior application for revocation of grant; the only previous matter was an objection dated 31st October 2022, which was dismissed for want of form and not determined on its merits.
The doctrine of res judicata under Section 7 of the Civil Procedure Act applies only where the same matter has been heard and finally determined by a court of competent jurisdiction. In E.T vs. Attorney General & Another [2012] eKLR , the court held that: -
“The doctrine of res judicata applies only where the previous decision was a final determination on the merits of the case.”
Similarly, in John Florence Maritime Services Ltd & Another vs. Cabinet Secretary for Transport & Infrastructure & 3 others [2015] eKLR , the Court of Appeal reiterated that res judicata does not apply to applications dismissed on procedural grounds.
I find that since the appellants’ earlier objection was dismissed on a technicality, on account of want of form, and not on the substance of their claim, the subsequent application could not be deemed to be res judicata. It is my finding that the trial court’s reliance on the doctrine of res judicata was misconceived and erroneous.
From the foregoing findings, I am persuaded that the trial court erred in law and in fact by dismissing the appellants’ application without hearing them and misapplying the doctrine of res judicata to bar an application that had not been heard on merits. My above findings are sufficient to dispose of this appeal and I do not have to venture into or belabour the remaining issues of the validity of the record of appeal or the appellants’ entitlement to the share of the estate.
I find that the appropriate remedy is therefore to set aside the ruling of 28th August 2024 and reinstate the appellants’ application dated 6th August 2024 for hearing on its merits before a different magistrate other than Hon. Ombija.
In the end, I find that the appeal has merit and is hereby allowed. Accordingly, I make the following orders:
The ruling and order of the learned Senior Resident Magistrate, Hon. C. Ombija, dated 28th August 2024, in Keroka MCSUCC No. E023 of 2021, is set aside.
b) The appellants’ application dated 6th August 2024 for revocation/annulment of grant is hereby reinstated for hearing on the merits before a different magistrate other than Hon. Ombija.
c) The appeal is allowed with no orders as to costs.
'