https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7342

In re Estate of Githiomi (Deceased) (Probate & Administration 307 of 2003) [2026] KEHC 7342 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7342 (KLR) Republic of Kenya In the High Court at Nyeri Probate & Administration 307 of 2003 MA Odero, J May 29, 2026 IN THE MATTER OF THE ESTATE OF WACHIRA GITHIOMI (DECEASED) In the matter of Charity Wairimu Wanjohi Applicant Ruling 1.Before this Court for determination is the Notice of Preliminary Objection dated 30th January 2025 filed by the Protestor/Applicant Charity Wairimu Wanjohi (as legal representative of the estate of Githiaka Wambugu Kamutu)The Respondents opposed the Preliminary objection. Background 2.This succession cause relates to the estate of the late Wachira Githiomi (the Deceased) who died intestate in the year 1961. 3.Vide a judgment delivered on 19th April 2018 Hon. Lady Justice Matheka allowed a summons for Revocation of Grant dated 29th September 2017. The court proceeded to revoke the grant which had been issued to the Respondent on 14th July 2005 as well as the certificate of Confirmed Grant issued on 7th October 2008. The court also directed that all consequential actions be set aside and Title No. LR MAHIGA/KIHOME/391 revert to its original states in the name of the Deceased. 4.Finally in that same judgment the High Court directed that“The estate of Wachira Githiomi made up of his parcel of land LR Mahiga/Kihome/391 be shared equally among his children, i.e the applicant, the 2nd respondent their sister Murugi Wachira (through her son Daniel Maina Murugi) and Wamucii Wachira.” 5.Following that judgment the Administrator Johnson Kiragu Wachira filed a summons for confirmation of Grant dated 5th July 2021. One Benjamin Maingi Karimi filed an Affidavit of Protest dated 30th September 2024 claiming that he was a protected purchaser under Section 93 of the Law of Succession Act. 6.In response the Applicant filed this Notice of Preliminary Objection dated 30th January 2025 which was premised upon the following grounds:-“ 1.The hearing of the summons for confirmation dated 5th July 2021 is resjudicata and this court being functus officio lacks jurisdiction to hear the same taking into account the judgment of this court delivered on 19th April 2018. 2.The said summons herein is incompetent, vexatious and an abuse of court process and raises no reasonable cause of action.” 7.The matter was disposed by way of written submissions. The Applicant filed the written submissions dated 16th February 2026 whilst the Respondents relied on their written submissions dated 5th January 2026. Analysis And Determination 8.I have carefully considered the Preliminary Objection filed by the respondents as well as the written submissions filed by both parties. 9.The definition of a Preliminary Objection was given in the case of Mukisa Biscuits Manufacting Company Ltd -vs- West End Distributors Ltd [1969] EA where the court statesas 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 plea of limitation or a submissions 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 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.” [Own emphasis] 10.In Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR, the Supreme Court of Kenya stated as follows:-“A preliminary Objection may only be raised on a “pure question of law”. 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.” 11.Therefore in order for a preliminary objection to succeed the following tests must be satisfied.(i)The Preliminary Objection should raise a pure point of law.(ii)The Preliminary Objection must be argued on the assumption that all the facts pleaded are correct.(iii)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.(iv)A valid Preliminary Objection ought to if successful dispose of the entire suit.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. 12.The Respondent in her Preliminary Objection asserts that the summons for confirmation of Grant dated 5th July 2021 is res judicata’ as the issues raised therein were already dealt with by the court in the judgement dated 19th April 2018. 13.The principle of ‘Res Judicata’ is provided for by Section 7 of the Civil Procedure Act Cap Laws of Kenya 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.” 14.Black Law Dictionary 10th Edition defines Res Judicata in the following terms:-“An issue that has been definitely settled by judicial decision…… the three essentials are:-i.An earlier decision on the issue;ii.A final judgement on the merits; andiii.The involvement of the same parties, or parties in privity with the original parties;” 15.The Court of Appeal in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR stated as follows:-“That rule or doctrine of res judicata serves the salutary aim of bring finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded in issues and suits that have already been determined by a competent court – It is designated as a pragmatic and nonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favoruable to themselves. Without it there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.” [Own emphasis] 16.Therefore party seeking to rely on the doctrine of res judicata to bar a suit from being heard must prove each of the following elements:-(a)The suit or issue raised was directly and substantially in issue in the former suit;(b)The former suit was between the same parties or between the same parties under whom they or any of them claim;(c)The parties were litigating under the same title in the former; and(d)The court that formerly heard and determined the issues was competent to try and the subsequent suit or the suit in which the issue is raised. 17.The purpose of the doctrine of Res Judicata is to avoid a scenario where the courts are engaged in endless rounds of litigation over the same issue. A litigant may not commence more than one action in respect of the same or a substantially similar cause of action so as to avoid a multiplicity of suits. 18.In essence therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merit by a court of competent jurisdiction. The court in the English case of Henderson Vs Henderson (1843-…………..) all E.R. 378, observed thus:-“…………where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” [Own emphasis] 19.It therefore follows that a court will as well invoke the doctrine in circumstances where a party raises issues in a subsequent suit, wherein he/she ought to have raised the issues in the previous suit as between the same parties. 20.The judgment of 19th April 2018 revoked the Grant which had been issued on 14th July 2005 and the confirmed Grant which had been issued to the Respondent on 7th October 2008. The court set aside all consequential orders and actions and ordered that title in the suit land revert to the original owner i.e to the name of the Deceased Wachira Githiomi. 21.In the same judgment the court went on to set out the mode of distribution of the estate in Compliance with Section 38 of the Law of Succession Act. This was the decision of the High Court sitting as a Probate Court. 22.The summons of 5th July 2021 sought to have the fresh grant which had been issued on 11th March 2021 confirmed. Obviously once the previous grant had been revoked a fresh grant had to be issued. Further this fresh grant would have to be confirmed. The judgement of 19th April 2018 related to a Summons for revocation of Grant. The summons dated 5th July 2021 relates to an application to confirm a grant. These are two different legal processes. The High Court in the judgment of 19th April 2018 did not deal with or determine this question of confirmation of a Grant at all therefore the question of res judicata cannot arise. 23.In the Notice of Preliminary Objection it was contended that the High Court is ‘functus officio’ and as such cannot entertain the summons for confirmation of Grant. A court is deemed to be ‘functus officio’ when it has dealt with a matter conclusively and there remains no further action to be taken. 24.In the case of Raila Odinga & 2 Others -vs- Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR the Supreme Court of Kenya in discussing the principle of functus officio rendered itself thus:-“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.” 25.The next step following issuance of a grant is obviously confirmation of the same. The question of confirmation of the Grant issued on 11th March 2021 has not previously been dealt with by any court. For as long as the Grant remains unconfirmed the High Court cannot be said to be functus. 26.Accordingly I find no merit in this preliminary objection. The same is dismissed in its entirety. Costs will be met by the Protestor/Applicant. DATED IN NYERI THIS 29TH DAY OF MAY 2026.……………………MAUREEN A. ODEROJUDGE