https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6764

In re Estate of Njoroge (Deceased) (Succession Cause 432 of 2009) [2026] KEHC 6764 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6764 (KLR) Republic of Kenya In the High Court at Nakuru Succession Cause 432 of 2009 JM Nang'ea, J May 18, 2026 IN THE MATTER OF THE ESTATE OF PETER IGAMBA NJOROGE (DECEASED) Between Nyambura Njoroge 1st Applicant Pauline Njoki Kungu 2nd Applicant Gladys Wambui Thuku 3rd Applicant Mary Wanjiru Mwangi 4th Applicant and Eunice Wanjiru Igamba 1st Respondent John Njoroge Igamba 2nd Respondent Ruling 1.The Respondents challenge the Applicants’ Summons dated 24/6/2025 for Revocation of Grant herein, vide a Preliminary Objection dated 3/10/2025. The Applicants seek the following orders in their impugned Application;a.Spent.b.That pending hearing and final determination of this summons, the Respondents be restrained from administering properties; LR. No. Shawa/Rongai Block 1/220, Elburgon Block 1/21 Kamirithu that fall under the estate of the late Njoroge Igamba alias Njoroge Njora Kigamba (Deceased) Estate of the deceased herein. (sic)c.That the Certificate of Confirmation of Grant issued to the Respondents on the 13th October, 2010 be revoked and/or annulled on the grounds that the said Grant in light of the judgement of this court delivered on the 27th April 2022 by Honourable Justice D.O. Ohungo in Nakuru E.L.C. No. 279 of 2016. (sic)d.That costs of this Application be borne by the Administrator/Respondent. 2.Through affidavit evidence of the 4th Applicant (Mary Wanjiru Mwangi) sworn with the authority of her co-Applicants as well, the Applicants contend inter alia that Certificate of Confirmation of Grant dated 13th October 2010 was obtained through concealment of material facts, particularly having regard to the terms of the Environment and Land Court Judgement in Nakuru Environment and Land Court Case Number 279 of 2016. 3.The Respondents’ Preliminary Objection to the Application is predicated upon grounds as here below;I.That the application is non started, redundant and incurably inept. (sic)II.That the application is fatally defective since it is not premised on any known provisions of law to warrant the granting of the prayers sought by the applicants.III.That the application is premised on unknown provisions of law hence fatally defective.IV.That the instant application is an abuse of the court process and unmerited to warrant the granting of prayers sought.V.That the applicants have not suggested any mode of distribution for the deceased estate.VI.That the application is a non starter since it is not based on any known cause of action for the reasons that the grounds upon which the same is based do not warrant the granting of the orders sought.VII.That the orders sought, are superfluous since the applicants ought to have prayed for the same in Nakuru COA No. E100 of 2023. (sic)VIII.That the application is res judicata a similar application dated 15th November, 2014.IX.That the applicant has not sought for the review, vacating or setting aside of the orders issued on 9th June, 2016.X.That the application is a gross abuse of the court process and the orders sought are superfluous and incapable of being granted. 4.On 16/2/2026 the court directed that the objection be canvassed first by means of written submissions that have been duly filed by Learned Counsel for the parties. Respondent’s Submissions 5.The Respondents fault the Applicants for purportedly bringing their Application pursuant to among other provisions, Part VIII Section 44(i) of the Probation and Administration Rules which provision does not exist. Case law in Stephen Mwatha Kanja vs Peter Kiarie Njuguna & Another (2021) KECA 611 (KLR) is cited as deprecating such wrongful citation of the law. Section 76 Law of Succession Act is also said to have been wrongly invoked. For the reason that no grounds of fraud warranting revocation of the grant have been established. 6.The Respondents further argue that the Application is res judicata as a similar Application dated 15/11/2014 for Revocation of the Grant was heard and determined on 9th June 2016. Counsel make reference to the judicial determination in Uhuru Highway Development Limited vs CBK & 2 Others (1996) eKLR which underscores the res judicata principle. 7.Relying on the famous Mukisa Biscuits Manufacturing Company V.s West End Distributors Case, the Respondents contend that the Preliminary Objection is not based on pure point(s) of law as evidence needs to be investigated by examining the court’s previous records. Applicants’ Submissions 8.The Applicants also rely on the Mukisa Biscuits Case supra. This principle is reiterated in Quick Enterprises Limited vs Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999 & Engineer E. M. Kithimba T/a Kithimba Associates Consulting Enginees vs Attornery General & Another (2014). eKLR. According to the Applicants, grounds Nos. I, V, VII, IX and X of the Preliminary Objection delve into factual matters that need to be investigated for the court to reach a conclusion as to whether or not the plea of res judicata is made out. 9.The Applicants insist that their Application is properly brought under Section 76 of the Law of Succession Act under which the court may be moved for revocation of a grant on grounds of fraud or misrepresentation or concealment of material facts. 10.The court is therefore told that the Application is not res judicata, the Applicants adding that the court’s Ruling of 9/6/2016 on the Application dated 15/11/2014 was limited to the jurisdiction of the court and not the merits of the Application. Determination 11.The issue for determination is whether the Preliminary Objection is well taken. Part VIII section 44(i) of the Probate and Administration Rules does not exist as pointed out by the Respondents. The Application, however, appears to be substantially brought under Section 76 of the Law of Succession Act on the ground that the Grant herein was procured by fraud. Article 159(d) of the Constitution prohibits administration of justice by paying undue regard to technicalities. The error in accurately quoting the applicable law is not therefore sufficient to dismiss or strike out the Application. 12.The court further holds that the plea of res Judicata may not be argued at this point since relevant facts need to be investigated through adduction of evidence. Besides, the Application dated 15/11/2014 was not determined on merits. The court did not pronounce itself on whether or not the Grant was obtained by fraud and/or concealment of material facts. The court only found that it had no jurisdiction to determine issues of trust in relation to land and referred the parties to the Environment and Land Court for a decision as to whether or not there was a trust over parts of the Estate created in favour of the deceased. 13.The Preliminary Objection accordingly fails and is dismissed. This being a family matter, no order is made as to costs. J.M. NANG’EA - JUDGE.RULING DELIVERED VIRTUALLY THIS 18TH DAY OF MAY, 2026.In the presence of:Mr. Mulamba Advocate for Ms Mukira Advocate for the ApplicantsMr. Mwangangi Advocate for Mr. Chege Advocate for the RespondentCourt Assistant (Jeniffer)J.M. NANG’EA - JUDGE.