Florence Okach & Grace Atieno Okach v Winnie Wangoma Okach & Jack Odera Okach [2015] KEHC 7352 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 1297 OF 2010

IN THE MATTER OF THE ESTATE OF

BONIFACE OKACH -  (DECEASED)

FLORENCE OKACH.............................................1ST APPLICANT

GRACE ATIENO OKACH......................................2ND APPLICANT

VERSUS

WINNIE WANGOMA OKACH..........................1ST RESPONDENT

JACK ODERA OKACH......................................2ND  RESPONDENT

RULING

The bottom line is that in respect of the deceased Boniface Okach there are two parallel Succession Causes.  The first was filed in 1996 It is HC Succession Case No. 1569 of 1996 at Nairobi.  It was filed by the respondents who obtained a grant which was confirmed.  The grant was, however, revoked at the instance of Emmanuel Okach, a beneficiary.  The respondents then secretly filed a second Cause which is the instant matter.  A grant was issued and was confirmed, but the applicants filed summons for the revocation of the same.  The applications are pending.

I asked the parties to address me on the competence of the present Cause in view of the earlier.  Each side filed written submissions which I have considered.

Where a party files a Cause knowing that he had filed a similar matter before the same Court and that the same is pending that is tantamount to playing lottery with the judicial process and is an abuse of the process of the Court.  (ASEA BROWN BOVERI LTD –V- BAWAZIR GLASS WORKS LTD[2001] 2EA 336; LEONARD ONYANCHA –V- POST BANK CREDIT LTD HCCC NO. 396 of 2000 at Kisumu).

Under rule 73 of the Probate and Administration Rules:-

“Nothing in these Rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

In both cases the issue in question is the administration of the estate of the deceased Boniface Okach, and the same parties are involved. The Court is being called upon to decide who will administer the estate, to identify the beneficiaries and determine their respective shares.

Ideally, the present Cause is an abuse of the process of the Court and should be struck out.  However, in the wider interest of justice, I order the consolidation of the two causes: HC Succession Cause No. 1297 of 2010 and HC Succession Cause No. 1569 of 1996, both at Nairobi.  The Causes shall be consolidated and heard together in HC Succession Cause No. 1297 of 2010 in which there are pending applications for revocation dated 1st October 2012 and 4th December 2012.  The two applications shall be heard on a date to be taken at the registry on priority basis.

DATED at NAIROBI this 22nd day of May 2015

A.O. MUCHELULE

JUDGE

DELIVERED at NAIROBI this 28th day of May, 2015

W. MUSYOKA

JUDGE