https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12099

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERICHO** **SUCCESSION CAUSE NO. 89 OF 2014** **IN THE MATTER OF THE ESTATE OF THE LATE DANIEL KIPKEMOI ROTICH** **JOEL KIPSANG BETT**..............................................**RESPONDENT**/**ADMINISTRATOR** **VERSUS** **JOSEPH KIPTONUI BETT……………………………….APPLICANT/BENEFICIARY** **RULING** **A. INTRODUCTION** 1. This is a ruling on the Notice of Preliminary Objection dated 26th January 2026, filed by the Administrator/Respondent, Joel Kipsang Bett ("the Respondent"), against the Chamber Summons dated 18th November 2025 filed by the Beneficiary/Applicant, Joseph Kiptonui Bett ("the Applicant"). 2. The Preliminary Objection raises four grounds: (a) that this Court is functus officio; (b) that the matter is res judicata, the issues having been heard and finally determined in a ruling delivered by Sergon J. on 5th December 2024 and in earlier rulings of this Court; (c) that this Court is divested of jurisdiction to hear and determine the application; and (d) that the application is frivolous, vexatious, bad in law, incompetent, and an abuse of the process of the Court. 3. The Preliminary Objection was canvassed by way of written submissions. The Respondent's submissions were filed on 15th May 2026 and the Applicant's submissions in response on 8th June 2026. **B. BACKGROUND** 4. The estate of Daniel Rotich alias Kipkemoi A. Rotich (deceased) has been the subject of these proceedings since 2014. A grant of letters of administration intestate issued on 8th May 2015 was confirmed on 2nd February 2023 and thereafter rectified on 7th November 2024. 5. Following confirmation, the Applicant has, on at least three occasions, sought to disturb the confirmed and/or rectified grant: (i) a Summons for Revocation of Grant dated 28th February 2023, opposed by a preliminary objection dated 27th March 2023 raising want of proper representation under Order 9 Rule 9 of the Civil Procedure Rules and functus officio/res judicata; dismissed by this Court (Sergon J.) on 16th May 2023 — reported at [2023] KEHC 17699 (KLR) — the Court rejecting the representation ground (holding Order 9 Rule 9 inapplicable to succession causes) but upholding the objection on functus officio, associating itself with Re Estate of Juma Shitseswa Linani (Deceased) [2021] eKLR; that ruling addresses only the general proposition that a party dissatisfied with confirmation must appeal or seek review rather than move under section 76, and the general reference at its paragraph 13 to issues “dealt with before confirmation of grant” is, on its face, to the matters Ongeri J. had dealt with suo motu concerning the Barsiele Block 6 purchasers; the ruling contains no reference to, and makes no finding concerning, parcels Kericho/Kiptere/4380, 1012, 1035, 4523 or 4524; (ii) a parallel suit before the Chief Magistrate's Court, Kericho (ELC Case No. E086 of 2023), challenging title to parcels forming part of the distributed estate, dismissed on 4th June 2024 on the doctrine of stare decisis; and (iii) a further Summons for Revocation and/or Annulment of Grant dated 12th February 2025, supported by the Applicant's affidavit sworn 13th February 2025, which pleaded in terms — with a Certificate of Title and Certificate of Official Search annexed as "JKB2" — that parcel Kericho/Kiptere/4380 stood registered in the Applicant's own name, and — with a Certificate of Official Search annexed as "JKB3" — that parcel Kericho/Kiptere/1035 had been subdivided in 2004 into Kericho/Kiptere/4523 and 4524 and registered to a third party; that application was dismissed on 31st July 2025, but on the sole ground that the Court was functus officio upon confirmation of the grant and that a party aggrieved by the distribution ought to appeal or seek review rather than move under section 76, relying on Re Estate of Juma Shitseswa Linani (Deceased) [2021] eKLR and Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 of 2000; the ruling of 31st July 2025 did not, in terms, adjudicate the truth or falsity of the assertions concerning parcels 4380, 1035, 4523 or 4524, nor make any finding as to whether those parcels were correctly or incorrectly included in the distributed estate. 6. None of these three adverse determinations was appealed. 7. The application now before the Court, dated 18th November 2025, is brought under Order 9 Rule 9, Order 45 Rules 1, 2 and 5 of the Civil Procedure Rules, and Rules 63 and 73 of the Probate and Administration Rules. It seeks, principally: leave for new advocates to come on record; a stay of execution of the rectified certificate of confirmation of grant; an order reviewing, cancelling and/or setting aside the rectification of 7th November 2024 and the confirmation of 2nd February 2023; a consequential order excluding parcel Kericho/Kiptere/4380 from the estate; and redistribution. 8. The grounds advanced include: (a) that parcel Kericho/Kiptere/4380 is registered in the Applicant's own name and could not lawfully form part of the estate; (b) that parcels Kericho/Kiptere/1012 and 1035 were subdivided by the deceased in his lifetime and the resulting titles vest in named third parties, such that the parent parcels no longer exist for distribution; (c) that persons not being true beneficiaries have been included in the distribution schedule; and (d) that the true acreages of two parcels understate what appears on the register. **C. ISSUES FOR DETERMINATION** 9. Four issues arise: (a) Whether the grounds pleaded in the Notice of Preliminary Objection meet the threshold for a valid preliminary objection; (b) Whether, and to what extent, this Court is functus officio; (c) Whether, and to what extent, the application of 18th November 2025 is barred by res judicata; and (d) What order should issue, including as to costs. **D. THE LAW ON PRELIMINARY OBJECTIONS** 10. A preliminary objection must raise a pure point of law argued on the assumption that the facts pleaded by the other side are correct, and which, if upheld, disposes of the matter. It cannot be raised where any fact must be ascertained: Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, per Law JA: *“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit... It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of a judicial discretion.”* 11. This threshold has been consistently applied, including in Kyule v Gitaari (Civil Appeal 217 of 2023) [2024] KEHC 5819, where the Court held that a preliminary objection must be founded on a settled and crisp point of law such that its application to undisputed facts admits of only one conclusion. 12. It is equally settled that a plea of res judicata, because it requires an inquiry into what was “directly and substantially in issue” in an earlier suit, is generally unsuited to determination by way of preliminary objection and is better raised by way of a substantive application with the relevant pleadings and record annexed: Oraro v Mbaja [2005] KEHC 3182 (KLR); George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another [2014] KEELC 104; Margaret Njeri Gitau v Julius Mburu Gitau & 2 others [2022] eKLR. 13. That principle is not, however, absolute. Where the facts said to found res judicata or functus officio consist exclusively of this Court's own prior rulings in the very cause before it — a matter of record of which the Court may take judicial notice — as opposed to disputed extrinsic facts requiring proof, the objection does not necessarily fall foul of the Oraro/Kimani line of authority. The distinction drawn in that line of cases is between disputed fact requiring evidential inquiry, and undisputed matters apparent from the court's own file. **E. THE LAW ON FUNCTUS OFFICIO AND RES JUDICATA IN SUCCESSION MATTERS** 14. Section 71 of the Law of Succession Act, Cap 160, governs confirmation of grants. Section 76 provides the exclusive statutory grounds for revocation or annulment of a grant — whether or not confirmed, and “at any time” — namely that the proceedings to obtain the grant were defective in substance, that the grant was obtained fraudulently or by an untrue allegation of fact, or that the holder has failed in specified duties. 15. Section 80 of the Law of Succession Act provides that a grant takes effect from its date, and that, in intestacy, the power to sell, deal with, or distribute the estate arises only upon confirmation. This is distinct from, and must not be confused with, section 80 of the Civil Procedure Act, which is the general provision for review of orders, applied to probate causes through Rule 63 of the Probate and Administration Rules and Order 45 of the Civil Procedure Rules. The two provisions serve entirely different purposes, and conflating them (as sometimes occurs in practice: see the discussion in Khisa v Nalika (Family Appeal E008 of 2023) [2025] KEHC 5797 (KLR)) is liable to generate confusion as to the correct procedural vehicle for a given complaint. 16. The doctrine of functus officio, as applied to confirmed grants, was stated in Re Estate of Juma Shitseswa Linani (Deceased) [2021] eKLR: *“Where a person is unhappy with the process of confirmation of grant, such a person ought not to move the court under section 76 for revocation of grant. Instead, the person should file an appeal against the orders made by the court on distribution or apply for review of the said orders. This is because the court confirming a grant largely becomes functus officio so far as confirmation of the grant is concerned, and cannot revisit the matter unless upon review.”* 17. Two things follow from this formulation, and both are material to the present objection. First, functus officio operates specifically to preclude a fresh revocation application under section 76 that seeks, in substance, to re-open the confirmation or distribution exercise already concluded. Second, and equally, the same authority expressly preserves appeal and review as available remedies notwithstanding functus officio. The doctrine is therefore not a categorical bar to any post-confirmation application whatsoever; it is a bar to using revocation as a substitute for appeal or review. 18. This qualification was recently reinforced, in the Respondent's favour, in In re Estate of the Late Andrea Chebos Maiyo (reported at Kenya Law Weekly Issue 037/25-26 of 2026), where an application filed after confirmation of grant — seeking leave to change advocates, stay of execution, injunctive relief, and review of the certificate of confirmation — was dismissed in its entirety as an abuse of process, the Court holding that “functus officio was an enduring principle of law that prevented the re-opening of a matter before a court that rendered the final decision thereon,” and that “litigation must come to an end.” That case is instructive as to how courts treat applications which invoke the language of “review” but which, in substance, seek to reopen matters already fully argued and decided. 19. The correct approach, reading Linani and Andrea Chebos Maiyo together, is that a post-confirmation application styled as a review will survive a functus officio objection only to the extent that it raises a matter genuinely not previously placed before, or determined by, the Court. To the extent it repeats a matter already canvassed and rejected, it is barred, whatever label is placed on it. **F. ANALYSIS** **Whether the Preliminary Objection meets the Mukisa Biscuit threshold** 20. The grounds of functus officio and divestiture of jurisdiction, insofar as they rest on this Court's own prior rulings of 16th May 2023 and 31st July 2025 in this very cause, are properly raised by preliminary objection. Those rulings, their dates, and their express holdings are not disputed by the Applicant and are apparent from the Court's own record; no extrinsic evidence is required to establish that they were made, what they held, or that they were not appealed. 21. The ground of res judicata stands on a different footing. Whether the “matter directly and substantially in issue” in the 2023 and 2025 revocation applications is identical to what is now raised requires a comparison of the substance of those applications against the substance of the present one — in particular, whether the specific complaints concerning parcel Kericho/Kiptere/4380 (said to be already registered in the Applicant's own name) and the subdivision of parcels 1012 and 1035 were in fact pleaded and adjudicated previously, or whether they are raised here for the first time. On this narrow point, the record of the 12th February 2025 application is now available to the Court and puts one half of the inquiry beyond dispute: those specific matters were pleaded in that application, supported by title and search documents. What remains genuinely contested is whether they were adjudicated — and on the face of the ruling of 31st July 2025, they were not: that ruling turned exclusively on the functus officio point and did not make any finding, one way or the other, on the status of parcels 4380, 1035, 4523 or 4524. A dismissal reached on that procedural footing does not, of itself, amount to a decision that the matter in question was "heard and finally decided" within the meaning of section 7 of the Civil Procedure Act, which res judicata requires. The ruling of 16th May 2023 — [2023] KEHC 17699 (KLR) — has now also been reviewed and confirms the same pattern: it upheld a preliminary objection on functus officio grounds, addressed only the general Linani proposition and a discrete point about the applicant's advocate's standing under Order 9 Rule 9, and at no point engaged with, or made any finding concerning, parcels 4380, 1012, 1035, 4523 or 4524. Two of the three prior determinations relied on by the Respondent are therefore now shown, on their own text, to be confined to procedural grounds. As to the Environment and Land Court judgment of 4th June 2024 in ELC Case No. E086 of 2023 (Joseph Kiptonui Bett v Joel Bett, Geoffrey Kiplangat Tarus & the Attorney General), that judgment confirms the following. That suit, filed 4th September 2023, sought a declaration that the Plaintiff was the rightful owner of Kericho/Kiptere/4380 and consequential vacant-possession and injunctive relief; it was met by a preliminary objection dated 14th February 2024 pleading res judicata by reference to Succession Cause 89 of 2014, and the suit was struck out on 4th June 2024 on the ground that a party aggrieved by the High Court's succession judgment ought to have pursued an appeal to the Court of Appeal rather than institute a fresh suit in the Environment and Land Court collaterally attacking title to the same parcel. That determination accordingly falls into the same category as the 2023 and 2025 rulings considered above: a holding on forum and procedure, and not a decision on whether parcel 4380 (or 1012/1035) was rightly included in the estate. All three determinations relied upon by the Respondent are, in the result, procedural rather than substantive, and none of them founds res judicata against the specific matters preserved at paragraph 27(c) below. 22. Accordingly, the Preliminary Objection is properly before the Court on the functus officio and jurisdictional limbs (paragraphs (a) and (c) of the Notice), to the extent those limbs rest on the undisputed record of this cause; it is not properly before the Court, in the Mukisa Biscuit sense, on the res judicata limb (paragraph (b)) to the extent that limb requires the Court to determine, as a contested question, precisely what was previously pleaded and decided as against what is now newly raised. The objection that the application is “frivolous, vexatious, bad in law, incompetent and an abuse of process” (paragraph (d)) is, likewise, not a pure point of law capable of disposing of the suit without inquiry into the conduct and substance of the pleadings, and is more properly addressed as part of the substantive disposal of the application, including on costs. **Whether, and to what extent, the Court is functus officio** 23. This Court has twice held itself functus officio in this cause on the question of confirmation and distribution of the estate (rulings of 16th May 2023 and 31st July 2025), and the Environment and Land Court independently declined to disturb the same titles (ruling of 4th June 2024). That is a settled and repeatedly affirmed position which this Court has no basis to depart from insofar as the present application seeks, in substance, to relitigate the general composition of beneficiaries, the propriety of the distribution formula, or matters already specifically rejected in those rulings. 24. However, consistent with Linani, functus officio does not extend to foreclose a properly constituted review application raising a discrete, previously unadjudicated error apparent on the face of the record. The application of 18th November 2025 is brought, in terms, under Order 45 of the Civil Procedure Rules and Rules 63 and 73 of the Probate and Administration Rules — that is, as a review, not as a section 76 revocation. To the extent it is confined to discrete, documentarily verifiable matters not shown to have been previously placed before the Court — in particular, the assertion that parcel Kericho/Kiptere/4380 is registered in the Applicant's own name under a title predating the deceased's death, and the assertion that parcels 1012 and 1035 were subdivided inter vivos into different parcel numbers now held by named third parties — the Court is not functus officio, and those specific matters fall to be examined on their merits as a review, not struck out at the threshold. 25. The Court notes, without finally determining the point, that the further matter deposed to concerning a purported 2013 sale agreements and acknowledgment attributed to the deceased (who died in 2010) is not tied to any of the substantive prayers in the application as framed, and section 76(b) of the Act in any event permits revocation for fraud “at any time,” whether or not the grant has been confirmed. That matter, if pursued, ought properly to be particularised and tied to specific relief rather than left as unanchored background narrative. **Res judicata** 26. For the reasons given at paragraph 21 above, the Court declines to determine the res judicata plea summarily on preliminary objection, though the scope of what remains genuinely contested has now narrowed. On the material now before the Court, the revocation applications dismissed on 16th May 2023 and 31st July 2025 did not pleaded-and-determine the complaints concerning parcel 4380's registration in the Applicant's name or the inter vivos subdivision of parcels 1012 and 1035 — both rulings turned exclusively on functus officio and related procedural grounds, and neither engaged the substance of those parcels. Res judicata founded on those two rulings therefore does not, on the present record, bar the specific matters preserved at paragraph 27(c) below. The ELC judgment of 4th June 2024 (ELC Case No. E086 of 2023) confirms that the suit before it was struck out for want of the proper remedy being an appeal to the Court of Appeal, and not on any finding as to the ownership or status of parcel 4380. That judgment likewise does not found res judicata against the matters preserved at paragraph 27(c). A certified copy of that judgment should nonetheless be formally exhibited in the record of the amended application, so that it is available to the Court in the usual way at the hearing; on the material now before this Court, however, none of the three determinations relied upon by the Respondent — the rulings of 16th May 2023, 31st July 2025, or the ELC judgment of 4th June 2024 — adjudicated the complaints concerning parcels 4380, 1012 and 1035 on their merits, and res judicata does not bar those matters from proceeding to be heard on review. **G. DISPOSITION** 27. For the foregoing reasons, the Court makes the following orders: (a) The Notice of Preliminary Objection dated 26th January 2026 is upheld in part and dismissed in part. (b) To the extent the Applicant's Chamber Summons dated 18th November 2025 seeks to reopen, relitigate, or vary the general composition of beneficiaries, the overall distribution formula, or any matter specifically determined in the rulings of 16th May 2023 and 31st July 2025, or in the Environment and Land Court judgment of 4th June 2024, the same is STRUCK OUT, this Court being functus officio thereon. (c) The application is permitted to proceed, strictly as a review under Order 45 of the Civil Procedure Rules read with Rule 63 of the Probate and Administration Rules, ONLY in respect of: (i) the claim that Kericho/Kiptere/4380 is registered in the Applicant's own name and was wrongly included in the distribution; and (ii) the claim that Kericho/Kiptere/1012 and 1035 were subdivided prior to the deceased's death and no longer exist as distributable parcels in their original form. (d) The Applicant shall, within 15 days, file an amended application confined to the matters preserved at order (c), together with a schedule cross-referencing each surviving ground to the specific paragraphs of the 2023 and 2025 revocation applications, so as to permit the Court to determine whether those specific grounds were previously raised and decided. (e) The plea of res judicata in respect of the matters preserved at order (c) is reserved for determination at the hearing of the amended application. (f) Pursuant to section 47 of the Law of Succession Act and the inherent jurisdiction of the Court, no further interlocutory application touching on the confirmed and rectified grant in this cause shall be filed without prior leave of the Court. (g) This being a family matter, there shall be no order as to costs. Delivered and signed virtually at Kericho this 30th July, 2026 HON. CHELANGAT MUTAI JUDGE 30/7/2026 In the Presence of:- The Applicant Interested Party