https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7799

In re Estate of Sum (Deceased) (Succession Cause 23 of 1985) [2026] KEHC 7799 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7799 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause 23 of 1985 E Ominde, J June 3, 2026 IN THE MATTER OF THE ESTATE OF ERNEST KIPNGETICH SUM (DECEASED) Between Veronica Chepsat Sum Petitioner and Celine George Proposed Interested Party Ruling 1.By Summons dated 22nd July 2025, the Applicant seeks orders that:1.Spent.2.Spent.3.Spent.4.The Proposed Interested Party/Applicant herein named Celine George alia Celine Gakuru George be and is hereby joined in the matter as an Interested Party. 2.The Application is premised on the grounds on the face of it is supported by the Affidavit of even date. The Applicant deposed that the late Ernest Kipngetich Sum was the legal and duly registered proprietor of a parcel of land known as LR No.2226 measuring approximately 1,300 acres. That she purchased a portion of the abovementioned parcel of land measuring 100 acres from the late Ernest Kipngetich Sum vide a Sale Agreement dated 18th March 1982. 3.That she paid the entire purchase price being sum of Kshs. 140,000/- to the deceased at the time of execution of the Sale Agreement as can be noted at Clause 2 thereof. That the purchased portion was demarcated and she took possession immediately after execution of the Sale Agreement in March 1982 as noted at Clause 3 and that she has remained in active possession, occupation and use the subject parcel of land to date which is a period of more than 40 years. 4.She further deposed that vide a letter dated 26th July 1982 to the District Commissioner, the Petitioner in her capacity as the wife to the vendor confirmed having no objection to the abovementioned sale and that the deceased obtained a consent from the Land Control Board on 14th March 1984 authorizing the aforementioned sale paving the way for subdivision and transfer of land. 5.That the deceased commenced the process of subdivision but did not conclude it for the reason that he subsequently fell ill leading to his death in the year 1984 of thereabouts and she allowed the family of the deceased to mourn his demise before she could demand for conclusion of the subdivision of the land and transfer of the resultant portion to her name. 6.The Applicant maintained that the Petitioner and the other family members having been promising to facilitate the process of transfer and stating that the delay was occasioned by a family disagreement on the commencement of succession proceedings. The Applicant further deposed that the Petitioner was issued with the Grant of Letters of Administration in the year 1986 but has never been keen to transmit the subject parcel of land to her and that the aforementioned Grant of Letters of Administration was confirmed on 18th April 1988 but the land has never been transmitted to date. 7.According to the Applicant, there is malice and mischief on the part of Petitioner in commencing the Succession Proceedings and failing to notify her for the last 40 years despite her constant request for conclusion of the subdivision process. That she has reached out to the Petitioner and other members of the family with request for transfer of the subject parcel of land after discovery of Succession proceedings but for unexplained reasons, they are not willing to action the transfer. The Applicant urged that the decision by the Petitioner to lock her out from Succession proceedings for the last 40 years smacks of malice. 8.She deposed that the Petitioner and the other family member have always been aware of her interest in the subject parcel of land hence the decision to leave her out of the proceedings is actuated either by malice, mischief or disregard. The Applicant is apprehensive that she will be deprived of her proprietary rights if the proceedings in this matter proceed without granting her the opportunity to defend her interest. She urged that she acquired her interest directly from the deceased proprietor, hence she can only receive her title by way of transmission. Response 9.The Application is opposed by the Petitioner/Respondent vide the Replying Affidavit sworn by Edel Chepkorir Sum on 11th September 2025. She deposed that’s she is the daughter of the deceased and the Petitioner herein and that her mother Veronica Chepsat Sum has been lawfully declared a person of unsound mind and that she is placed under her case as guardian ad litem. 10.The Respondent urged that the Application is a concoction of half-truths, deliberate falsehood and is designed to mislead this Court. The Respondent deposed that Celine George was known to the family, but her purported claim to 100 acres allegedly sold on 18th March 1982 was declared null ab initio by the Honorable Mr. Justice Ombwayo on 29th November 2017 after a full trial of the case on its merits and that the said judgment remains valid, binding and unchallenged to date for reasons no appeal was ever filed or prosecuted against it. 11.The Respondent contends that despite the finality of the said judgement, the Proposed Interested Party has embarked on a sustained campaign of vexatious litigation, filing multiple suits in various courts, all of which have consistently upheld the 2017 decisionand that these include: Eldoret ELC Case No. 418 of 2012; Celine George vs. Jonah Chiroch and Veronica Sum ( the Administratix of the Estate of the Late Ernest Sum, Eldoret ELC Case No. E057 of 2021; Veronica Sum vs. Joel Samoei & Celine George Poland (Interested Party), Eldoret Succession Cause No.38 of 2018 (In the matter of the estate of the late Christopher Kipchirchir Sum and Eldoret ELC Case No. E054 of 2025 ( Celine Gakuru George vs. Veronica Chepsat Sum & Edel Chepkorir Sum. 12.The Respondent thus contends that the present application is therefore nothing more than an afterthought, and it is frivolous and scandalous, and is only intended to re-open matters long settled so as to clog the wheels of justice. The Respondent added that since 2017, the Proposed Interested Party acting through her agent Joel Samoei has subjected her mother and their family to harassment, intimidation and emotional torment in utter disregard of Court orders and that her said agent was found in contempt of Court wand was fined Kshs. 900,000/= by the Honorable Mr. Justice Washe on 28th April 2025. 13.The Respondent urged that the Proposed Interested Party is therefore not only a vexatious litigant but also a contemnor by association, undeserving of the equitable discretion of this Court and further deposed that the present application is res-judicata having been conclusively determined by a Court of competent jurisdiction. That the multiplicity of suits filed by the Proposed Interested Party amounts to abuse of Court process which this Honorable Court ought to bring to an end for once and for all. That equity aids the vigilant and not the indolent and that the Applicant having slept on her rights and failed to appeal cannot now be allowed to re-litigate a matter already settled. 14.The Respondent further deposed that litigation must come and to an end and contended that the conduct of the Proposed Interested Party is a direct affront to the principle of finality of litigation and to the dignity of this Court. Further Affidavit 15.The Applicant filed a Further Affidavit dated 1st October 2025 wherein she basically reiterated her averments in her Affidavit in support for the Application save for adding that Edel Chepkorir Sum is not the administratix of the estate of the deceased and thus cannot be heard to speak on behalf of the deceased herein. The Applicant maintained that the appointment of the administratix is made in personam and that if the duly appointed administratix, Veronica Chepsat Sum is incapacitated in any way the only available option is for revocation of the inoperative Grant and appointment of a new administrator. The Applicant urged that the deponent of the Replying Affidavit, Edel Chepkorir Sum cannot purport to be clothed with powers of administration through proceedings taken outside the Law of Succession regime. 16.The Applicant further deposed that the allegation that the Sale Agreement between her and the deceased herein was nullified by the Hon. Justice Ombwayo in Eldoret ELC Case No.418 of 2017 is utterly false as can be gleaned from the referred judgment. That the only thing the judge did was to dismiss the suit and the Counter-Claim but did not make any determination on proprietary rights over the suit land. The Applicant urged that the Hon. Judge did not have the intention to nullify the subject Sale Agreement or terminate her interest on the suit as it can be drawn from the decision to dismiss the Counter-Claim which sought nullification of the Sale Agreement. 17.According to the Applicant, the reason for the dismissal of the suit and Counter-Claim was purely for the reason that there was a charge over the subject parcel of land in favor of Agricultural Finance Corporation(AFC). The Applicant urged that the said encumbrance in favor of AFC was lifted and/or removed on 27th June 2013, hence parties have a right to urge their respective claims over the subject parcel of land. The Applicant deposed that in any event, she is still in possession, occupation and use of 100 acres and that no eviction order has been issued to remover her from the land thereby confirming her interest in the estate. 18.The Applicant contended that the Respondent has mislead this Court to the effect that she had filed multiple suits. She maintained that Eldoret ELC Case No. E057 of 2022 was filed by the Petitioner/Respondent against one, Joel Samoei without joining her. That Eldoret Succession Cause No.38 of 2018 relates to a different estate to wit Estate of the Late Christopher Kipchirchir Sum and that she has never been joined as a party in the said cause. 19.The Applicant urged that it is not in doubt that the distribution of the estate herein will affect her interest with respect to LR No. 2226 hence, need for her participation for a fair and just resolution of the matter. She maintained that her joinder into cause will not be prejudicial to the Petitioner or any bona fide beneficiary in the estate noting that they will retain an effective opportunity to challenge her claim. She deposed that thus Court is bound under Articles 48 and 50 of our Constitution to grant any party an opportunity to be heard and should not unnecessarily drive a party from the seat of justice. Submissions 20.The Application was canvassed vide written submissions. The Proposed Interested Party/Applicant Submissions are dated 31st October 2025 whereas the Petitioner/Respondent are dated 6th October 2025. Applicant’s Submissions 21.Counsel for the Applicant for the most part restated the Applicant’s averments in her Affidavit in support of the Application and the court will therefore not regurgitate the same under this head. Regarding the issue of joinder, Counsel restated the Applicant’s averments in her Affidavit in support of the Application and by dint of he seeking to be joined on the basis of her proprietary interest in LR No. 2226 belonging to the deceased as already laid out in her Affidavits. 22.Counsel relied on the Supreme Court Case of Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others; Nature Foundation Limited (Proposed Interested Party) [2014] KESC 52 (KLR) and Attorney General v Ndii & 73 others [2021] KESC 17 (KLR) and the Court of Appeal decision in Saminico Limited v Mutiso (As the administrator of the Estate of Michael Mutiso Sila-Deceased) [2025] KECA 225 (KLR). 23.Regarding the doctrine of res judicata, Counsel contended that the allegation that the Sale Agreement between the Applicant and the deceased herein was nullified by Justice Ombwayo in Eldoret ELC Case No. 418 of 2017 is utterly false. Counsel submitted that the only thing that the Honorable Judge did was to dismiss the suit and Counterclaim because there was a Charge over the subject in favor of Agricultural Finance Cooperation who was not a party to the suit but the Court did not determine the proprietary interest of the Proposed Interested Party over the suit land. 24.Counsel therefore argued that there was no finality in the decision by Justice Ombwayo as to the issue of ownership of the subject parcel of land. That if the Honorable Judge wanted to nullify the Sale Agreement, nothing would have been easier than to expressly state so in the subject Judgment. Counsel further argued that the Counter-Claim should have been allowed if indeed the Honorable Judge held the view that the Proposed Interested Party's claim over the suit land is unmerited. He relied on the Supreme Court case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) and the Indian Supreme Court case of State of Haryana & RS v MP Mohla (2007) 1 SCC 457. 25.On the issue of locus standi, Counsel submitted that Edel Chepkorir Sum lacks the necessary locus standi to swear the Replying Affidavit as she has not been appointed as an administratrix of the estate. Counsel thus submitted that the deponent of the Replying Affidavit cannot purport to be clothed with the powers of administration through proceedings taken outside the Law of Succession. Counsel urged the Court to disregard the Replying Affidavit sworn without proper authority. He relied on the Court of Appeal decision in the case of Florence Okutu Nandwa & Another v John Atemba Kojwa, Kisumu Civil Appeal No. 306 of 1998 in this regard. 26.Counsel urged that the Applicant herein has come to Court with clean hands seeking to protect her proprietary Interests. Counsel contended that Respondent herein has not proffered any evidence to demonstrate that Joel Samoei who is allegedly in Contempt of Court Orders is associated in any way to the Applicant herein. Counsel submitted that the Applicant herein did not participate in the Contempt proceedings and hence she can't be driven away from the seat of justice by virtue of the alleged association. Counsel argued that the Petitioner/Respondent should have pursued a claim for contempt against the Proposed Interested Party before the court that issued the order if indeed she has committed any form of contempt. He relied on the case of SGS Kenya Limited v Energy Regulatory Commission & 2 others [2018] KECA 39 (KLR). Respondent’s Submissions 27.On the issue of res judicata, Counsel for the Respondent cited Section 7 of the Civil Procedure Act and reiterated the depositions made in the Respondent’s Affidavit as already herein summarized and pointed out that Hon. Justice S.M. Ombwayo in his judgment declared the transaction null and void ab initio and affirmed that the Applicant has no proprietary rights over the property. He relied on the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR). (supra). 28.Regarding the issue of the guardianship, Counsel submitted that the Court lawfully appointed Edel Chepkorir Sum as Guardian and Manager under the Mental Health Act and urged that under Section 26 of the said Act, such a guardian has full capacity to manage and represent the affairs of the patient in all legal proceedings. Counsel relied on the case of Re M’Mboroki M’ Rintari [2019] eKLR, where the Court affirmed that guardian ad litem has full capacity to act on behalf of a person of unsound mind. Counsel urged that the Replying Affidavit is therefore validly before the Court. 29.Counsel further submitted that the Applicant has not produced a valid transfer, mutation or Land Control Board consent transferring title in her favor and submitted that the alleged sale of 1982 is void under Section 6 of the Land Control Act for lack of consent. He relied on the decision of the Court of Appeal in the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR), and further submitted that the Applicant’s occupation of the land for over 40 years does not confer ownership, as Succession proceedings were pending and possession was neither open or adverse. 30.On abuse of the Court process, Counsel reiterated that the Applicant has filed multiple suits being ELC Case No. 418 of 2012, ELC Case No. E054 of 2025 and ELC Case No. E057 of 2022 on the same subject matter, which is harassment to the Petitioner. Counsel relied on the Court Appeal decision in the case of Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR). 31.Counsel asserted that the Applicant has come to Court with unclean hands as her Agent, one Joel Samoei was found guilty of contempt of Court and fined Kshs. 900,000/= by Justice Washe on 28/04/2025. Counsel relied on the case of Hadkinson v Hadkinson (1952) 2 All ER. 567 and submitted that the Applicant being associated with acts of contempt, cannot invoke equitable jurisdiction until she approached the Court with clean hands, Determination 32.Counsel for the Proposed Interested Party in his submissions raised several issues which in his view are the ones that arise for determination and which issues Counsel for the Respondent aligned his submissions by. I have addressed my mind to the said issues and having carefully considered the application, the depositions made in the varied Affidavits for and against the same, as well as the rival submissions filed by both Counsel, it is my considered opinion that the following are the issues that arise for determination and in order of priority for reasons that the courts determination on the one will affect the relevance of the next issue.a.Whether the Application is res judicata.b.Whether Edel Chepkorir Sum has the requisite locus standi in the matter in her capacity as the Petitioner’s guardian ad litem.c.Whether the Applicant, Celine George should be joined as Interested Party in this Succession Cause Whether the Application is res judicata 33.Regarding the doctrine of res judicata, Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya defines the doctrine of res judicata in the following terms: -“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.” 34.The said Act also then provides explanations on the circumstances under which and the manner in which the doctrine is applicable which provision were expounded upon by the court re Estate of Riungu Nkuuri (Deceased) [2021] eKLR wherein the court stated as follows:“The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 35.In the case of Attorney General & another v ET [2012]eKLR, the Court held that;“The courts 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 in the second suit is trying to bring before the court in another way and in form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & Others (2001) EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit”.In that case the court quoted Kuloba J, (as he then was) in the case of Njanju vs Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported) where he stated: If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata….”. 36.With the Statute and Case Law being as herein above, coming to the instant case, the Court notes that a perusal of the Applicant’s Application clearly shows that the same as juxtaposed against the mater that was heard and determined by Hon. Mr. Justice Ombwayo in Eldoret ELC Case No. 418 of 2017, it perfectly fits into the doctrine of res judicata. In reaching this conclusion, the court notes that the Proposed Interested Party does not deny that the said suit was between her and the estate of the deceased herein, which estate is the subject matter of this Succession Cause. 37.She also does not deny that the reason for which she seeks to be joined in this Succession Cause as an Interested Party is to protect what she refers to as her beneficial interest being 100 acres in LR No. LR No.2226 and that it is the same issue that was directly and substantially before the court in Eldoret ELC Case No. 418 of 2017, that the matter was heard and determined by the Hon Judge. Further, it has not been alleged that the said ELC Court as presided over by Justice Ombwayo did not have the requisite competence and jurisdiction to hear and determine the matter on its merits. 38.The Court has addressed its mind to the arguments now being made by the Proposed Interested Party as already herein summarized on how the decision of Hon Justice Ombwayo ought to be construed so as to determine what its import is/was. The court notes that no appeal was preferred against the said decision of the Hon Ombwayo J by the Proposed Interested Party. 39.Further, that from its perusal of the copy of the said Judgement annexed to the Respondent’s Replying Affidavit, it is apparent that the same was rendered on 20th November 2017 which is close to 9 years ago. This being the case, it is my very well considered opinion that this issue now being raised on how the Hon Ombwayo J’s judgement ought to be construed, is not only a non- issue but that it also does not belong to the purview of this court for reasons that this court does not have any appellate jurisdiction over the decision of the Learned Judge. 40.Clearly therefore, in light of my conclusion herein, the Interested Party’s Application is res judicata by dint of the decision of the court in Eldoret ELC Case No. 418 of 2017. Apart from this, the Applicant having filed this Application with the full knowledge that the issues herein raised had already been heard and determined by a court with the requisite and competent jurisdiction, it is my finding that this Application is not only mischievous, but is also an abuse of the court process. The same is accordingly dismissed in its entirety. 41.In light of the above finding therefore, the court then need not proceed to deliberate on the other two issues it had raised for determination for reasons that court’s finding that the matter res judicata determines the Interested party/Applicant’s application in its entirety matter in limine. In dismissing the Application, and given my finding that it is mischievous and an abuse of the court process, I now hereby condemn the proposed Interested Party/Applicant to pay the costs of the Application to the Respondent and the same is to be taxed by the Taxing Master on the higher scale. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE