1. The Late Joel Onwong’a Nyagenchanga passed away on 8.2.2000. Walter Kerosi Joel was appointed as the Personal Representative vide Letters of Administration Intestate issued on 8.2.2017. The grant was confirmed on 21.5.2019 whereby the entire estate of the deceased, that is L.R. No. Masaba North/ Boguche/1466 devolved to BENJAMIN ONSONGO MATONDA absolutely. The Objectors/Applicants filed a Summons for Revocation of Grant dated 26.4.2021 which application is still pending. The Administrator, WALTER KEROSI JOEL, subsequently passed on 7.6.2019. Vide a Notice of Motion dated 25.8.22 and filed by the firm of T.N. Okemwa & Co. Advocates, the Applicant, who describes herself as the Late Walter Kerosi Joel’s wife, seeks the following prayers: -
a. THAT this Honourable Court be pleased to grant an order of substitution allowing the applicant herein, HELLEN V. GICHANA, to become the plaintiff and suing as the legal representative in the estate of WALTER KEROSI JOEL (DECEASED.)
b. THAT the applicant be allowed to proceed with the suit herein as the plaintiff.
c. THAT the costs of this Application be in the cause.
2. The applicant deponed and submitted that she is the legal representative of the estate of the deceased administrator by virtue of letters of administration ad litem dated 10.9.24 and hence competent to be substituted in his place.
3. Counsel for the respondent submitted that the application is an abuse of the process of the court and res judicata and cited NAIROBI JUDICIAL REVIEW MISC.CVIL APPLICATION NO. 685 OF 2017 SATYA BHAMA GANDHI VERSUS DIRECTOR OF PUBLIC PROSECUTIONS & OTHERS (JOHN M.MATIVO.J). where the court cited words of Oputa.J.Sc (as he then was) in that abuse of judicial process is "a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious and oppressive. ………………… on res judicata counsel cited NAIROBI CIVIL APPEAL NO. E120 OF 2023 MKA VERSUS NKA (H.K.CHEMITEI.J). The court said while commenting in the case of ET Versus Attorney General & another (2012) the court said as follows "The court must always be vigilant to guard litigants evading the doctrine of Res Judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff (now applicant) in the second suit (now application) is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction". The instant notice of motion has been determined by court of competent jurisdiction and therefore ‘’. It was also submitted that the applicant filed application dated 25.8.22 seeking similar orders and the same was dismissed on 22.1.24 for being res judicata and he annexed a copy of the said ruling.
4. On substitution counsel submitted that there is no legal provision allowing for substitution of the deceased administrator also that the applicant has told the honourable court that she has obtained limited grant which according to her gives her the locus to file the instant application. Counsel told this court that the limited limited grant that is annexed to the instant application was meant for filing a suit and that this is not a suit that the said limited grant was meant for. Further that the succession cause herein is for the estate Joel Onwonga Nyagechanga (deceased ) and not Walter Kerosi Joel.
Determination
5. I have considered the Application, the supporting affidavit, the replying affidavit, the supplementary affidavit and the Respondent’s submissions and also the law.
6. Looking at the Application, the Respondent raised the plea of res judicata and it is therefore imperative that I determine that issue first as it has the propensity of determining this matter in limine.
7. The doctrine of res judicata is now well-settled and courts have over time substantively addressed themselves on the matter.
8. Recently, the Supreme Court also had occasion to weigh in on the matter. In John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) the Court restated in paragraph 86 that the elements to be demonstrated are:
a) There is a former judgment or order which was final;
b) The judgment or order was on merit;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.
9. The issue of substitution was raised in the application dated 25.8.22which was dismissed by this court on 22.1.24 . The parties in that application were the same as in the instant application and the subject matter was the same . The order was also final on the issue of substitution of an administrator . The application is thus clearly resjudicata .
10. In any event , in the said previous application this court held that a grant is issued in personam and is not transferable while relying on the case of Re Estate of Muroko Kimitu (Dcd) [2019] eKLR, the Court cited the Court of Appeal decision Florence Okutu Nandwa and Another v John Atemba Kojwa Civil Appeal No. 306 of 1998 where the Court held as follows: -
“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another.
The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules). I agree with the respondent that there cannot be a substitution of the dead administrator by his wife in the manner proposed by the applicant.”
11. It follows therefore that the applicant herein cannot substitute the Late Walter Kerosi Joel in this matter in the capacity so claimed. Since the administrator of the Deceased’s estate is also deceased, it follows that the grant has become useless and inoperative and is ripe for revocation under Section 76 of the Law of Succession Act. It certainly cannot be brought to life by transferring it to another party as held in the previous application .
12. It is for those reasons that I dismiss the application dated 27.9.2024 .I proceed to make the following orders in the interest of justice :
a. The grant of letters of administration dated 8.2.17 and the subsequent confirmed grant dated 21.5.2019 are hereby revoked .
b. The A new application for grant be filed .
c. A new official search for land parcel Masaba North / Boguche / 1466 be availed.
d. The area chief to issue a new letter introducing all the survivors and beneficiaries of the estate of deceased .
e. The Kisii County land registrar and county surveyor to visit land parcel no. Masaba North / Boguche / 1466 and establish ground occupation and avail the report 30.9.25 .
13. There shall be no order as to costs.
a. THAT this Honourable Court be pleased to grant an order of substitution allowing the applicant herein, HELLEN V. GICHANA, to become the plaintiff and suing as the legal representative in the estate of WALTER KEROSI JOEL (DECEASED.)
b. THAT the applicant be allowed to proceed with the suit herein as the plaintiff.
c. THAT the costs of this Application be in the cause.
2. The applicant deponed and submitted that she is the legal representative of the estate of the deceased administrator by virtue of letters of administration ad litem dated 10.9.24 and hence competent to be substituted in his place.
3. Counsel for the respondent submitted that the application is an abuse of the process of the court and res judicata and cited NAIROBI JUDICIAL REVIEW MISC.CVIL APPLICATION NO. 685 OF 2017 SATYA BHAMA GANDHI VERSUS DIRECTOR OF PUBLIC PROSECUTIONS & OTHERS (JOHN M.MATIVO.J). where the court cited words of Oputa.J.Sc (as he then was) in that abuse of judicial process is "a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious and oppressive. ………………… on res judicata counsel cited NAIROBI CIVIL APPEAL NO. E120 OF 2023 MKA VERSUS NKA (H.K.CHEMITEI.J). The court said while commenting in the case of ET Versus Attorney General & another (2012) the court said as follows "The court must always be vigilant to guard litigants evading the doctrine of Res Judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff (now applicant) in the second suit (now application) is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction". The instant notice of motion has been determined by court of competent jurisdiction and therefore ‘’. It was also submitted that the applicant filed application dated 25.8.22 seeking similar orders and the same was dismissed on 22.1.24 for being res judicata and he annexed a copy of the said ruling.
4. On substitution counsel submitted that there is no legal provision allowing for substitution of the deceased administrator also that the applicant has told the honourable court that she has obtained limited grant which according to her gives her the locus to file the instant application. Counsel told this court that the limited limited grant that is annexed to the instant application was meant for filing a suit and that this is not a suit that the said limited grant was meant for. Further that the succession cause herein is for the estate Joel Onwonga Nyagechanga (deceased ) and not Walter Kerosi Joel.
Determination
5. I have considered the Application, the supporting affidavit, the replying affidavit, the supplementary affidavit and the Respondent’s submissions and also the law.
6. Looking at the Application, the Respondent raised the plea of res judicata and it is therefore imperative that I determine that issue first as it has the propensity of determining this matter in limine.
7. The doctrine of res judicata is now well-settled and courts have over time substantively addressed themselves on the matter.
8. Recently, the Supreme Court also had occasion to weigh in on the matter. In John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) the Court restated in paragraph 86 that the elements to be demonstrated are:
a) There is a former judgment or order which was final;
b) The judgment or order was on merit;
c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action.
9. The issue of substitution was raised in the application dated 25.8.22which was dismissed by this court on 22.1.24 . The parties in that application were the same as in the instant application and the subject matter was the same . The order was also final on the issue of substitution of an administrator . The application is thus clearly resjudicata .
10. In any event , in the said previous application this court held that a grant is issued in personam and is not transferable while relying on the case of Re Estate of Muroko Kimitu (Dcd) [2019] eKLR, the Court cited the Court of Appeal decision Florence Okutu Nandwa and Another v John Atemba Kojwa Civil Appeal No. 306 of 1998 where the Court held as follows: -
“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another.
The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules). I agree with the respondent that there cannot be a substitution of the dead administrator by his wife in the manner proposed by the applicant.”
11. It follows therefore that the applicant herein cannot substitute the Late Walter Kerosi Joel in this matter in the capacity so claimed. Since the administrator of the Deceased’s estate is also deceased, it follows that the grant has become useless and inoperative and is ripe for revocation under Section 76 of the Law of Succession Act. It certainly cannot be brought to life by transferring it to another party as held in the previous application .
12. It is for those reasons that I dismiss the application dated 27.9.2024 .I proceed to make the following orders in the interest of justice :
a. The grant of letters of administration dated 8.2.17 and the subsequent confirmed grant dated 21.5.2019 are hereby revoked .
b. The A new application for grant be filed .
c. A new official search for land parcel Masaba North / Boguche / 1466 be availed.
d. The area chief to issue a new letter introducing all the survivors and beneficiaries of the estate of deceased .
e. The Kisii County land registrar and county surveyor to visit land parcel no. Masaba North / Boguche / 1466 and establish ground occupation and avail the report 30.9.25 .
13. There shall be no order as to costs.