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JudgmentIn the Estate of WANGUO4 min read

In the Estate of WANGUO

High Court at Nyeri High Court · · Maureen Odero


PROBATE AND ADMINISTRATION APPEAL NO. E025 OF 2022

IN THE MATTER OF THE ESTATE OF

RAPHAEL MBOGO WANGUO (DECEASED)

RULING

  1. Before this Court for determination is the Notice of Preliminary Objection dated 27th July 2023 filed by 1st to 3rd Petitioner/Respondents against the Summons for revocation of Grant dated 15th June 2023. 
  2. The Preliminary Objection was opposed.  The matter canvassed by way of written submissions.  The Respondents filed the written submissions dated 16th April 2024 whilst the Applicants filed the written submissions dated 18th September 2024.

BACKGROUND

  1. This matter relates to the estate of the late RAPHAEL MBOGO WANGUO (Deceased).  The Applicants filed in Court a Summons dated 15th June 2024 seeking revocation of Grant.  In response the respondents filed this Notice of Preliminary Objection which is premised upon the following grounds:-

“1. THAT the application is bad in law, frivolous and a gross abuse of the court process.

2. THAT the application is merited by dint of the provisions of Section 76 of the Law of Succession Act Cap 160, Laws of Kenya.”

ANALYSIS AND DETERMINAITON

  1. I have carefully considered the Preliminary Objection as well as the written submissions filed by both parties.
  2. The definition of a Preliminary Objection was given in the case of MUKISA BISCUIT MANUFACTURING COMPANY LTD -VS- WEST END DISTRIBUTORS LTD [1969] E.A in which the court stated as follows.

“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point may dispose the suit.  Examples are an objection to the jurisdiction of the court, or a place of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…..  A Preliminary Objection is in the nature of what is used to be a demurrer.

It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion.”

  1. In AVIAITON & ALLIED WORKERS UNION KENYA -VS- KENYA AIRWAYS LIMITED & 3 OTHERS [2015] eKLR, the Supreme Court of Kenya stated

“a Preliminary Objection may only be raised on a “pure question of law.”

  1. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts.  The facts are deemed agreed as they are prima facie presented in the pleadings on record.”
  2. Therefore in order for a Preliminary Objection to succeed, the following tests must be satisfied;-
  3. The Preliminary Objection should raise a pure point of law.
  4. The Preliminary Objection must be argued on the assumption that all the facts pleaded are correct.
  5. The Preliminary Objection cannot be raised if any fact is to be ascertained or if what is being sought is the exercise of judicial discretion.
  6. A valid Preliminary Objection ought to if successful dispose of the entire suit.
  7. Therefore a genuine and proper Preliminary Objection can only raise pure points of law and must not itself derive its foundation on facts or information which stands to be tested by normal rules of evidence.
  8. The Respondents have argued that the application dated 15th June

2024 is misplaced as a similar application dated 23rd February 2023 has already been dealt with and was struck out by the court.  In other words the Respondents are submitting that the present application is ‘Res Judicata’.

  1. The doctrine of ‘Res Judicata’ prevents a court from hearing a matter

which has already been heard and determined by a court of competent jurisdiction.  The Respondents cite the application dated 23rd February 2023 which they claim was similar to the present one.

  1. I have perused the record in this matter.  I note that on 14th June

2023 the Honourable Justice Muchemi stated as follows:-

“The Summons for revocation dated 23rd February 2023 is hereby declared incompetent for not having been supported by an affidavit.  It is hereby struck out with costs to the Respondents.”

  1. In dismissing that summons the court did not hear the matter on merit. 

The application was dismissed on a technicality i.e the failure to file an affidavit in support of the Summons.

  1. For Res Judicata to apply the previous application must have been

‘heard and determined’ by a Court of competent jurisdiction.  The application dated 23rd February 2023 was neither heard nor determined on merit.  I therefore find that the application dated 15th June 2024 is not Res Judicata.

  1. Secondly the Respondents submit that the Summons dated 15th June

2023 does not meet the requirements of Section 76 of the Law of Succession Act.  This is not a pure point of law.  The applicants are now delving into the merits of the summons and are raising matters of fact which can only be determined at a hearing in which witnesses will be called to testify.

  1. For the above reasons I find no merit in this Preliminary Objection. 

The same is hereby dismissed.

  1. This being a family matter each side will meet their own costs.

Dated in Nyeri this 8th Day of November 2024.


    In the Estate of WANGUO In the Estate of WANGUO