1.By the notice of motion dated June 3, 2022, the eleven (11) plaintiffs herein pray for orders that:
2.The application is supported by two affidavits sworn by the 1st plaintiff – Faith Wambui Njau and is premised on the grounds that:
3.The application is opposed. In a replying affidavit sworn on their behalf by the 1st defendant – John Mwangi Ndung’u on August 22, 2022. The defendants aver that the plaintiff’s application is bad in law, incurably defective, frivolous and vexatious and that the same is filed in abuse of the court process.
4.The defendants assert that the application is pegged on a substantive suit which is res judicata for offending section 7 of the Civil Procedure Act. The 1st defendant asserts that he together with the 2nd defendant have sued the plaintiffs together with the interested parties over the same issues being raised herein in Nyeri ELC Case No E003 of 2022; Pasquelina Nyokabi Ndung’u & another v Faith Wambui Njau & 12 others.
5.The 1st defendant denies that his mother (the 2nd defendant) suffers from old-age dementia and unsoundness of mind as stated by the 1st plaintiff. He further denies that the 1st plaintiff and/or her husband had a matrimonial home in Mweiga. The 1st defendant asserts that the Mweiga Farm was home to all the children of their father while the 1st plaintiff and her husband had their matrimonial home in Mombasa.
6.In addition to the replying affidavit, the defendants have taken out a notice of preliminary objection dated August 22, 2022 wherein they object to both the suit and the application on the grounds:
1.That the plaintiffs’ suit is bad in law, incurably defective, vexatious and frivolous and amounts to (an) abuse of the court process;
2.That the suit is res judicata for it offends section 7 of the Civil Procedure Act, cap 21 Laws of Kenya;
3.That there is a similar suit pending before this court i.e Nyeri ELC Case No E003 of 2022; Pasquelina Nyokabi Ndung’u & another v Faith Wambui Njau & 12 others;
4.That the suit contravenes section 45 of the Law of Succession Act, cap 160 Laws of Kenya for it amounts to intermeddling of the estate of the deceased before it has been distributed per the grant issued on the December 1, 2017 and rectified at Mombasa on January 30, 2018 in the High Court of Kenya at Mombasa.
7.Following directions given herein on September 27, 2022, it was agreed that both the preliminary objection as filed by the defendants and the plaintiffs’ notice of motion application be disposed of simultaneously. I have accordingly carefully considered both the objection and the motion as well as the written submissions placed before me by the learned advocates representing the parties herein.
8.Whereas the notice of preliminary objection as instituted by the defendants seeks to have both the plaintiffs’ suit dismissed, in limine, the plaintiffs’ application basically urges the court to grant orders of injunction restraining the defendants from surveying and/or alienating the suit properties and/or from interfering with the plaintiffs’ quiet and peaceful enjoyment thereof.
9.From the manner in which their preliminary objection was framed, the defendants were objecting to the plaintiff’s suit on account that there was another suit pending between the parties herein and that hence, according to them, the suit herein was res judicata. As it turned out, the suit pending between the parties is Nyeri ELC Case No E003 of 2020; Pasquelina Nyokabi Ndung’u & another v Faith Wambui Njau & 12 others.
10.As it were, the doctrine of res judicata as encapsulated under section 7 of the Civil Procedure Act bars a court from trying a matter which was directly and substantially in issue in a former suit between the same parties where such matter had been heard and finally decided upon by a court competent to try the issue. There was no evidence that the suit cited by the defendants in their preliminary objection had been heard and finally determined.
11.Upon realizing the error on their part, the defendants have sneaked in a purported amendment to their pleadings vide paragraph 5 of their submissions filed herein on November 28, 2022 where they state as follows:
12.I did not however think that the defendants could be allowed to proceed in that manner. Their notice of preliminary objection as given to the plaintiffs was in complete contrast to their submissions and it would not be fair to ambush the plaintiff with an issue which had not been pleaded and for which they had not taken time to consider and respond to.
13.The other issue raised by the defendants is the claim that the plaintiff’s suit contravenes section 45 of the Law of Succession Act in that it amounts to intermeddling with the estate of the deceased before it has fully been distributed. Try as I may, I was unable to see how the filing of a suit in a court of law can amount to intermeddling as defined under section 45 of the Law of Succession Act. While indeed actions of parties in the suit may be said to amount to intermeddling, it was not clear to me how the institution of the suit would ipso facto amount to intermeddling.
14.At any rate, it was apparent to me that whether or not the plaintiffs had intermeddled with the estate of the said deceased was not a point of law capable of disposing of the suit but a matter of fact which the parties would have to prove by way of evidence placed before the court.
15.Having conceded that the aspects constituting limbs ‘a’, ‘b’ and ‘c’ of their preliminary objection was in error and this court having found no basis for their last ground of objection it follows that I did not find any basis for the preliminary objection. The same was misconceived and is hereby struck out.
16.Moving on to the plaintiffs’ application, it is their case that they are deserving of injunctive orders on the basis that the defendants have in recent times taken advantage of the death of their father Festus George Ndung’u, the death of their elder brother George Maina and the mental infirmity of their mother – Pasquelina Nyokabi Ndung’u to take away from the plaintiffs their parcels of land in Mwiega Farm, to evict the plaintiffs’ from their matrimonial home thereon and to deprive them of rents and other benefits from their Gathecha Building in Mombasa
17.The plaintiffs accuse the defendants of entering the suit properties and carrying out surveys of portions thereof with a view to alienating the same and evicting the plaintiffs therefrom.
18.In response to the application, the 1st defendant denies that they have taken steps to disinherit the plaintiffs of their entitlements. On the contrary, it is his case that it is the 1st plaintiff who is trying to disinherit the rest of the beneficiaries of the estate of his late father after the 1st plaintiff and her late husband squandered their share of the estate. He denies having roped in Surveyors and the Lands Office at Nyeri to help him disinherit the plaintiffs.
21.Elaborating on the question of a prima facie case in Nguruman Limited (supra), the Court of Appeal went on to state thus:
22.In that regard I have looked at the averments made in the 1st plaintiff’s supporting and further affidavits. I was unable to find anything to show that the parcel of land said to be measuring 160 acres was the 1st plaintiff’s matrimonial home and/or that it was exclusively in their control vis-a-vis the other members of the family of the late Festus George Ndung’u. It was also not clear from a perusal of paragraphs 20 to 22 of the supporting affidavit which were the plots of land within the Mweiga Farm which the defendants are accused of attempting to alienate.
23.It follows that I was not persuaded either that the plaintiffs had shown a clear and unmistakable right that deserves protection by this court in the manner sought in the motion dated June 3, 2022.
24.In the premises both the preliminary objection and the motion are dismissed.
25.Each Party shall bear their own costs.