https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12151

In re Estate of Mwake (Deceased) (Succession Cause 186 of 2011) [2026] KEHC 12151 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12151 (KLR) Republic of Kenya In the High Court at Machakos Succession Cause 186 of 2011 EN Maina, J July 30, 2026 IN THE MATTER OF THE ESTATE OF MWEKE KIMAKU MWAKE (DECEASED) Between Joseph Mutunga Mweke Applicant and Alice Nzuva Mueke Respondent Ruling 1.What is before this court is a Notice of Motion dated 11th August, 2025, brought under Sections 40 and 47 of the Law of Succession Act, Rule 63 of the Probate and Administration Rules, and Order 45 Rule 1 of the Civil Procedure Rules, by which the 2nd Administrator/Applicant seeks orders that the ruling of this court delivered on 9th October, 2019, upholding the protest herein and apportioning the distribution of the estate of the late Mweke Kimaku Mwake, be set aside in its entirety, that this court order a rehearing of the summons for confirmation of grant with a view to a proper redistribution of the estate in compliance with Section 40 of the Law of Succession Act, and that the costs of the application be awarded to him. 2.The grounds advanced in the Notice of Motion and the supporting affidavit are, in summary, as follows. The deceased died intestate as a polygamous man survived by two wives and children of more than one household. The estate was distributed without regard to Section 40 of the Law of Succession Act, which the Applicant contends required the residue of the net intestate estate to be divided among the houses according to the number of children in each house, with the surviving wife added as an additional unit. The distribution disproportionately favoured the 2nd house notwithstanding that the 1st house has 11 units against the 2nd house's 8. This, the Applicant says, offends the principle of equality under Article 27 of the Constitution and Section 38 of the Law of Succession Act, read with Section 40, and the resulting orders have caused material injustice, inequality and family discord. The Applicant further relies on a letter dated 26th April, 2025 from the Aumoni Mbaa Kiimu Clan, and the minutes of a clan meeting of the same date, said to support his proposed mode of distribution. 3.In response, the 1st Administrator/Respondent filed a Notice of Preliminary Objection dated 8th September 2025, brought under Sections 1A, 1B(c), 3A and 7 of the Civil Procedure Act, raising a single issue for determination: whether the Notice of Motion is res judicata, the issues now raised having already been determined in the ruling of this court delivered on 9th October, 2019, and ought on that account to be struck out with costs. 4.Learned counsel for the parties elected to canvass the Preliminary Objection by way of written submissions, which I have carefully considered. Rather than rehearse those submissions in full, I shall refer to the salient arguments where relevant in the analysis and determination below. Analysis and determination 5.I have considered the pleadings, the rival submissions, the authorities cited by both counsel and the law. 6.The Applicant's first line of attack is that the objection does not raise a pure point of law and cannot properly be determined as a preliminary objection, relying on the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where it was held that a preliminary objection consists of a point of law argued on the assumption that the facts pleaded by the other side are correct, and that it must not require the court to descend into the facts to resolve it. I agree that this remains the applicable threshold. I do not, however, agree that it defeats the Respondent's objection in the present case. The ruling of 9th October 2019 upon which the objection is founded is not disputed by either party. It is a ruling of this very court, in this very cause, and its terms are pleaded and relied upon by the Applicant himself. The doctrine of res judicata impeaches the jurisdiction of a court to hear and determine a dispute before it and i is now trite that jurisdiction is a matter of law. In the case of Kenya Commercial Bank Ltd & another v Muiri Cofee Estate Ltd & 3 others (Motion 42 & 43 of 2014 (Consolidated)) [2016] KESC 6 (KLR), the Supreme Court stated,“Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights.”The Preliminary Objection cannot therefore be wished away. It is an appropriate response to this application. 7.Turning to the substance, it is now well settled that the doctrine of res judicata applies with equal force in succession causes as in any other civil litigation. The rationale for the doctrine was restated by the Supreme Court in the case of John John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] eKLR, where the court restated the elements of res judicata to be;“a)There is a former judgment or order which was final;b)The judgment or order was on merit;c)The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action.” 8.That reasoning has in fact been applied to bar attempts to relitigate matters already settled at the stage of confirmation of grants, see In re Estate of Onesmus Kibira Wanjohi (Deceased) (Succession Cause 110 of 2002) [2025] where the court stated,“The facts also do not support review. Either, there is no direct challenge on the Certificate of Confirmation of Grant before this court as to cause justification for interfering with the bequeathal on LR No. Laikipia/Tigithi/Matanya Block 3 (Matanya Centre)/638 within the meaning of Section 76 of the Law of Succession Act. Litigation must come to an end. That is the foundation, that settled matters should remain as settled and so the basis for res judicata.” 9.Applying the elements restated in the case of John Florence Maritime Services Ltd (supra) and Section 7 of the Civil Procedure Act, I am satisfied that the mode of distribution of the estate between the two houses was directly and substantially in issue in the ruling of Kemei.J. dated 9 Oct 2011. The proceedings, giving rise to that ruling ,were between the same parties as in the present application and the parties were litigating under the same title. The issue in dispute / contention was also the same as in the present application. That court did also have the requisite jurisdiction to try the issues in that application. The Applicant's contention that non-compliance with Section 40 of the Law of Succession Act was never raised in that previous application, in my view, create a new issue. The subject matter in both instances is the mode of distribution of the same two parcels between the same two houses. A party cannot escape the bar of res judicata by advancing the same grievance under a different legal label. Had the Applicant considered the 2019 ruling to have been erreneous in failing to apply Section 40, or in taking into account extraneous considerations, his remedy lay in an appeal. 10.I have also considered the Applicant's submission that the court's inherent jurisdiction under Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules, and Article 159(2)(d) of the Constitution ought to be invoked to correct what he terms an illegal and discriminatory distribution. This argument must be weighed against the guidance of the Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others (supra), where the court held that departure from the doctrine of res judicata is permissible only in the rarest of cases, and only where a litigant demonstrates special circumstances or a real potential for substantial injustice should the matter not be heard afresh. Six years have elapsed since the 2019 ruling without an appeal having been filed. The Applicant has not demonstrated fraud, want of jurisdiction, or any other circumstance taking this case out of the ordinary run of confirmed distributions. To reopen a distribution finally made and unappealed for six years, on the basis that the court ought to have applied Section 40 differently, would be to convert every confirmed distribution into a perpetually open question, which cannot be the intendment of the Law of Succession Act, the Probate and Administration Rules, or Article 159(2)(d) of the Constitution. 11.In the result, I find that the Notice of Motion dated 11th August 2025 is res judicata the ruling of this court delivered on 9th October, 2019. 12.Consequently, the Notice of Preliminary Objection dated 8th September, 2025 is upheld and the Notice of Motion dated 11th August 2025 is accordingly dismissed. This being a family matter, each party shall bear their own costs. RULING SIGNED, DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 30TH DAY OF JULY 2026.E.N. MAINAJUDGEIn the presence of;Mr. Mauncho for the 2nd Administrator/ApplicantNo appearance for the 1st Administrator/RespondentMiriam - Court Assistant/Interpreter