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JudgmentRICHARD MUTURI KIURA VS AUGUSTINE NJERU MUTURI5 min read

RICHARD MUTURI KIURA VS AUGUSTINE NJERU MUTURI

High Court at Embu High Court · · Lucy Njuguna


  1. The applicant filed notice of motion dated 19th September 2023 based on the grounds set out on its face and in the supporting affidavit, seeking orders that:
    1. Wawira Njagi be presumed and declared dead and a certificate of death be issued to that effect; and
    2. The costs of this application be provided for.
  2. It is the applicant’s case that he holds several properties jointly with Wawira Njagi, who disappeared in 2014 and has never been found since. Through the application, he seeks an order of presumption of death to enable Wawira Njagi’s son to pursue succession proceedings in her name and to also allow him to access his portion of the properties that are jointly held.
  3. The application was opposed through a replying affidavit through which the respondent, being the only son of Wawira Njagi, stated that the orders sought herein were granted through Embu CM Misc. Application No. E002 of 2023 on 30th March 2023. He produced a copy of the court order. On the same basis, the respondent also filed a notice of preliminary objection on the ground that the application is res judicata. This preliminary objection is the subject of this ruling.
  4. The preliminary objection was canvassed by way of written submissions.
  5. The applicant submitted that the respondent did not provide sufficient information in his application for presumption of death of Wawira Njagi. That the orders granted had since been cancelled and that the respondent ought to provide more evidence since the matter of presumption of death is very serious. That the applicant has filed the application with the same intention that the respondent had when he was filing his application before.
  6. The respondent submitted that his preliminary objection is well founded and he relied on section 7 of the Civil Procedure Act. It was his argument that the order sought herein was already rightfully granted by another competent court of law. That no further evidence is needed to prove the disappearance of Wawira Njagi and that she can only be presumed dead once. He urged that the bar of res judicata applies in this case.
  7. From the foregoing, in my view, the issues for determination is whether the application is res judicata. 
  8. Res judicata is provided for under section 7 of the Civil Procedure Act as follows:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

  1. In order to have clear bearing on the issue at hand, I have taken the liberty of perusing the court record in Embu CM Misc. Application No. E002 of 2023. The respondent indeed filed a notice of motion dated 25th January 2023 seeking similar orders as the ones sought herein and it was premised on similar grounds. The learned magistrate granted the orders prayed for and issued an order to that effect. The order has since been marked as recalled.
  2. The question herein is whether the application before the court is res judicata. The answer to this question is found in determining whether the magistrate’s court had jurisdiction to determine the similar application placed before it by the respondent herein. Jurisdiction of a court flows from the constitution or written law or both. Where the court is lacking in jurisdiction, it cannot confer it upon itself. (see the case of Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others (2012) eKLR)
  3. The jurisdiction of Magistrate’s courts in civil cases is established under section 7(3) of the Magistrates Courts Act as follows:

“(3) A magistrate\'s court shall have jurisdiction in proceedings of a civil nature concerning any of the following matters under African customary law-

(a) land held under customary tenure;

(b) marriage, divorce, maintenance or dowry;

(c) seduction or pregnancy of an unmarried woman or girl;

(d) enticement of, or adultery with a married person;

(e) matters affecting status, and in particular the status of widows and

children including guardianship, custody, adoption and legitimacy;

and

(f) intestate succession and administration of intestate estates, so far as they are not governed by any written law.”

  1. This law expressly excludes mattes of presumption of death from the purview of magistrate’s courts. Therefore, the order made by the magistrate presuming Wawira Njagi as dead, was made without jurisdiction. This means that the court lacked jurisdiction from the point of the respondent filing the application to the point of making the order. In the case of Phoenix of E.A. Assurance Company Limited vs. S. M. Thiga t/a Newspaper Service (2019) eKLR, the Court of Appeal held that:

“...Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction. “

  1. Conversely, the high court has unlimited original jurisdiction in criminal and civil matters according to Article 165(3)(a) of the Constitution. This includes jurisdiction to issue an order of presumption of death. What this means is that the respondent ought to have filed his application in the high court and not in the magistrate’s court. Since the application was filed without jurisdiction, the magistrate’s court ought to have downed its tools and immediately hold itself without jurisdiction to go any further (see the case of Owners of Motor Vessel \"Lilian s\" vs. Caltex Oil (K) Ltd (1989) KLR 1).
  2. After issuing the order, the magistrate’s court found itself lacking jurisdiction and so it recalled it’s order by marking the same as recalled. However, since the magistrate’s court did not have jurisdiction to entertain the application in the first place, it also lacks jurisdiction to recall is own such order. Such an order may only be set aside by the high court. In the meantime, the orders by the magistrate have no legal effect.
  3. Given my foregoing sentiments, I find that the application herein is not res judicata since the application filed before the magistrate’s court was void from the point of filing having been placed before a court lacking jurisdiction.
  4. Therefore, the preliminary objection is devoid of merit and it is hereby dismissed. 
  5. It is so ordered.

Delivered, dated and signed at Embu this 09th day of October, 2024.


    RICHARD MUTURI KIURA VS AUGUSTINE NJERU MUTURI RICHARD MUTURI KIURA VS AUGUSTINE NJERU MUTURI