https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/2

In re Estate of Khan (Deceased) (Succession Cause E119 of 2025) [2026] KEKC 2 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEKC 2 (KLR) Republic of Kenya In the Kadhi’s Court at Upper Hill (Nairobi Milimani Law Courts) Succession Cause E119 of 2025 IN Nyaboga, PK June 3, 2026 IN THE MATTER OF MOHAMED SHAFI KHAN (DECEASED) Between Najda Begam Khan 1st Petitioner Mohammed Suhail Khan 2nd Petitioner Mohammed Umar Khan 3rd Petitioner Misbah Begam Khan 4th Petitioner and Yasmin Begum Khan 1st Respondent Zaheeda Begum Khan 2nd Respondent Abdulrauf Khan 3rd Respondent Ruling 1.The first Respondent/Objector raised a Notice of Preliminary Objection against the Petitioners’ Petition on grounds, inter alia, that: -a.The issues raised in the Petitioners’ Application were fully heard, determined and conclusively settled in High Court Succession No. 154 of 2006, wherein a Grant of Letters of Administration intestate was lawfully issued and confirmed and the estate duly distributed.b.This Court lacks jurisdiction to entertain, hear and determine this suit.c.This Application is res judicata; the subject matter, parties and issues having been directly and substantially in issue and finally determined by a court of competent jurisdiction.d.The Applicants are improperly inviting this Honorable Court to reopen, vary and/or interfere with a confirmed Grant of Probate, contrary to the doctrine of finality of probate proceedings under the Law of Succession Act, Cap 160.e.The Applicants have no locus standi to institute or maintain the present proceedings, not being Administrators of the estate, nor holders of any Grant of Representation, whether full or limited, as required in law.f.The Applicants have failed to invoke the mandatory statutory procedure for revocation or annulment of grant under Section 76 of the Law of Succession Act, rendering the Petition incompetent, fatally defective and incurably bad in law.g.The succession court having confirmed the grant and distributed the estate became functus officio.h.The Application discloses no reasonable cause of action against the Respondents and is frivolous, vexatious and an abuse of the process of this Honorable Court. 2.The first Respondent/Objector in her written final submissions argued that this succession cause is res judicata owing to the fact that it was settled with finality by a court of competent jurisdiction. They cited several provisions of law and among that is Section 7 of the Civil Procedure Act which codifies the doctrine of res judicata and provides that:“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.” 3.She further cited the case in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (2021) in which the Supreme Court restated the elements that must be satisfied for res judicata to apply as follows:a.There must be a former judgment or order which is final;b.The judgment must have been on the merits;c.The judgment must have been rendered by a court with jurisdiction; andd.The parties, subject matter, and cause of action in the subsequent suit must be identical or substantially the same. 4.The first Respondent/Objector argues that in applying the above elements together with section 7 of the Civil Procedure Act to the Application at hand, they can clearly note that there exists a final judgment with regards to the same matter in Succession Cause No. 145 of 2006 In the matter of the Estate of Mohamed Shaffi Khan where the Grant was confirmed and the Estate distributed. Additionally, the High Court exercised its proper jurisdiction under the Law of Succession Act over the very same above-mentioned estate that the Petitioners are now contesting over. 5.Furthermore, the first Respondent/Objector argues that this Honorable Court lacks jurisdiction to entertain the present application on grounds that the matter has already been settled and the Applicants’ step now to invoke the jurisdiction of the Kadhi’s Court despite being fully aware that the High Court had already issued a Grant in respect of the estate matter, violates the basic jurisdictional principles that are part of our legal system. She contends that Section 5 of the Kadhi’s Courts Act confers jurisdiction upon the Kadhi’s Court to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance where all parties profess the Muslim faith. However, that jurisdiction does not oust or limit the jurisdiction of the High Court. 6.The first Respondent/Objector submits that it is trite law that litigation must come to an end and the present application constitutes a clear abuse of the court process, as it seeks to re-open and re-litigate succession proceedings that have long been concluded in accordance with the law. 7.The first Respondent/Objector sought that the preliminary objection be upheld and the matter dismissed at its earliest. 8.In opposition to the Notice of Preliminary Objection, the Petitioners invited the Court to determine whether the issue of res judicata is an issue of law that can be raised through a Preliminary Objection. 9.The Petitioners put reliance on the locus classicus case in Preliminary Objection proceedings, the case of Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd [1969] EA in which the court stated as 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. 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.” 10.The Petitioners contend that the first Respondent/Objector in her submission dated 20th February 2026 submitted that the Respondent’s submissions hinge on the fact that the Petitioners’ case is fatally and incurably defective, anchored upon an application that was already heard and determined and conclusively settled in High Court Succession Cause No.145 of 2006, in the matter of the Estate of Mohamed Shaffi Khan, which invites the Court to ascertain facts by perusing and interrogating pleadings in High Court Succession Cause No.145 of 2006, in the matter of the Estate of Mohamed Shaffi Khan. 11.The Petitioners cited, inter alia, the following decisions:a.In Kariuki & another v Nyotta & another (Environment and Land Appeal E127 of 2022) [2024] KEELC 1620 (KLR) (20 March 2024) (Judgment) stated thus:“…In the instant case, the Court will be required to refer to the said pleadings and examine the same to establish whether the instant appeal is res judicata. It follows, therefore, that the existence of the case, the parties thereto and the issues determined by the court in that case are all matters that need to be established through evidence.”b.In Oraro Vs Mbaja (2005) where the Court held that:“...Any assertion that claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement that where a Court needs to investigate facts, a matter cannot be raised as a preliminary point." Analysis & Determination: 12.I have considered the Preliminary Objection, submissions by both the Petitioners and first Respondent/Objector and thus, the main issue to address in this ruling is whether the Preliminary Objection meets the threshold laid down in law to render further proceedings impossible and unnecessary or incompetent. 13.To begin, we cited the locus classicus case, in Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd [1969] EA, supra, which laid down the requirements for a Preliminary Objection to qualify to dispose part or an entire suit. The requirements are, first, is that it raises a pure point of law and second, all facts pleaded by the opposite side are correct and undisputed. 14.In summary, the grounds this Preliminary objection is founded on are two, first is on the issue that this matter is res judicata as the same was fully heard, determined and concluded in the High Court Succession No. 154 of 2006, in the matter of the Estate of Mohamed Shaffi Khan and second, is that the Applicants have no locus standi to institute or maintain the present proceedings for not being Administrators of the estate, nor holders of any Grant of Representation, whether full or limited, as required in law. 15.The Petitioners have contended that the issue of res judicata as an issue of law cannot be raised through a Preliminary Objection and they put reliance on the case in Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd [1969] EA. 16.In Mukisa Biscuits, supra, Sir Charles Newbold, P, reiterated emphasizing that a Preliminary Objection not only raises a point of law, but a pure point of law. He states that:“It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by of preliminary objection does nothing but unnecessarily increase costs…” 17.A preliminary Objection apart from raising a pure and true point of law, requires that all the facts pleaded by the opposite party must be correct and need not to be ascertained by scrutinizing evidence. 18.The first Respondent/Objector cited four requirements laid down by the Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (2021), supra, to satisfy a matter to be res judicata. 19.The Applicants in response to the requirements for res judicate as outlined by the Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others, supra, contend in paragraph 11 & 12 of their submissions that it is not in dispute that they were not parties and have never been parties to High Court Succession Cause No.145 of 2006, in the matter of the Estate of Mohamed Shaffi Khan nor been aware or been notified of the same and which has been conducted in concealment by the Respondents and has only been forced to light in these proceedings and further, that there is no evidence at all in terms of pleadings that the issues they have raised were raised and who raised them on their behalf, granted they are not parties. 20.The Court cannot ascertain through the pleadings herein whether or not the Applicants were parties or represented and were aware and had been notified of the proceeding in Succession Cause No.145 of 2006, in the matter of the Estate of Mohamed Shaffi Khan except by going through all the proceedings in that particular case.21.In Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others, Application No. 50 of 2014, [2015] eKLR, the court stated that:“… 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.” 22.Courts have held that it is not advisable in regard to res judicate being raised as a point of law in preliminary objections and example to that is in Kenneth Shitsugane Olembo v County Government of Kakamega & another [2021], , in which D.O. Ohungo, J, stated that:“A perusal of the petition and accompanying documents shows that the petitioner did not anywhere refer to the case of Eunice Khalwali Miima v County Government of Kakamega [2021] eKLR. It is the first respondent who introduced the said case into this matter. It follows therefore that existence of the case, the parties thereto and the issues determined by the court in that case are all matters that need to be established through evidence. Generally, res judicata should be raised through a substantive application to which the pleadings and decision of the case are referred to are annexed, unless the party against whom it is raised and availed the pleadings and decision prior to the preliminary objection being raised.” 23.In this instant Preliminary Objection, it is also the first Respondent/Objector who introduced High Court Succession Cause No.145 of 2006, in the matter of the Estate of Mohamed Shaffi Khan and it follows therefore that existence of the case, the parties thereto and the issues determined by the court in that case are all matters that need to be established through evidence. 24.Equally, it is further the first Respondent/Objector who has claimed that the Applicants have no locus standi to institute or maintain the present proceedings for not being Administrators of the estate, nor holders of any Grant of Representation, whether full or limited, as required in law. This too needs to be verified and established by way of evidence. 25.The Supreme Court In Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR held that:“…. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits….” 26.From the foregoing, the Notice of Preliminary Objection failed to meet the threshold laid down and is hereby dismissed. DATED, SIGNED AND DELIVERED IN NAIROBI THIS 3RD DAY OF JUNE 2026IDRIS N. NYABOGAPRINCIPAL KADHIIn the presence of:Court Assistant: MiltonTariq Khan Counsel for first Respondent/ObjectorThe four Petitioners: Najda Begam Khan, Mohammed Suhail Khan, Mohammed Umar Khan & Misbah Begam Khan