https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9395

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION CAUSE NO 409 OF 2007** **IN THE MATTER OF ESTATE OF THE LATE WELLINGTON ONYANGO (DECEASED)** RUTH ANYANGO NYAOKE----------------------------- ADMINISTRATOR / RESPONDENT VERUS GEORGE LIKHANGA MUSEMBE (suing as the administrator and legal representative of PETER MAJINJI MUSEMBE------------------ OBJECTOR/APPLICANT **RULING** 1. Vide a notice of motion application dated 4th June 2006, the Applicant /Objector approached this court seeking the following orders; 2. *That this application be certified as urgent, service dispensed with in the first instance. (spent)* 3. *That this court be pleased to arrest the ruling in this matter slated for 4th June 2026 pending the hearing and determination of the application inter parties* 4. *That the objector / Applicant's submissions dated 4/6 2026 be admitted as properly filed* 5. *That the costs of this application be in the cause.* 6. In his grounds and affidavit that support the application, the Applicant’s counsel avers that the objector is the administrator of the estate of Peter Majinji Musembe, who was a liability in the estate of the deceased, having purchased a portion of the estate from the deceased. 7. He claims that the objector was never involved in the succession process and that his father’s interests as a liability were not disclosed at the time of petitioning for the grant of administration. 8. He claimed that he sought for a revocation of the grant on 3/3/2025 however the administrator filed a notice of preliminary objection claiming that the pleadings had been *res judicata* unfortunately he failed to file submissions in response to the preliminary objection due to an inadvertent error on the counsel’s office and avers that the objector has a right to have the preliminary objection be heard and the objector ought not to be punished and condemned unheard. 9. He prays that the objectors’ Applicant’s submissions dated 4/6/2026 be admitted as properly filed and that the court allow him to be heard before rendering its ruling. 10. At the time of writing this ruling, the Respondent had not filed their submissions. **Analysis and determination** 1. I have considered the Applicant’s plea for his submissions to be considered and the ruling that was slated for 4/6/2026 to be arrested and he be accorded a chance to file his submissions on the Preliminary Objection dated 20th November 2025. 2. The Applicant seeks leave for the submissions dated 4th June 2026 to be admitted as properly filed and for the court to defer the delivery of its ruling to consider the said submissions before determining the Preliminary Objection. 3. The Applicant in his application claims that the failure to file the submissions was an inadvertent mistake on the part of his advocate and contends that unless the submissions are admitted, the court would determine the Preliminary Objection without hearing his position. The applicant further submits that the objection raises the issue of *res judicata.* Yet, the persons whose interests he represents, being his late father, was never a party in the previous proceedings and his interests as liability of the estate was never considered. 4. This court is guided by Article 50(1) of the Constitution, which guarantees every person the right to a fair hearing, and Article 159(2)(d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities. 5. The Court of Appeal in the case of **Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103** held that mistakes of counsel should not ordinarily be visited upon innocent litigants where the interests of justice can still be served. 6. I am satisfied that the explanation offered for the delay is reasonable and that no prejudice will be occasioned to the Respondent if the submissions are admitted. Accordingly, the Applicant's submissions dated 4th June 2026 are hereby deemed as duly filed and properly on record. 7. Now turning to the Preliminary Objection dated 20th November 2025, the Respondent contends that the application for revocation of grant is res judicata. The doctrine of res judicata is provided for under Section 7 of the Civil Procedure Act and applies where a matter has been directly and substantially in issue in a former suit between the same parties or parties claiming under them and has been finally determined by a court of competent jurisdiction. 8. The Court of Appeal in **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR** held that all the ingredients of Section 7 of the Civil Procedure Act must be established before a plea of *res judicata* can succeed. 9. I have had an opportunity to peruse the application dated 20th November 2025. The applicant has approached the court as the administrator and legal representative of the estate of Peter Majinji Musembe, who is alleged to have been a purchaser of a portion of the deceased's land and therefore a liability of the estate. There is no material demonstrating that the estate of Peter Majinji Musembe, its beneficiaries or legal representatives were parties to the earlier proceedings or that they were accorded an opportunity to be heard before the estate was distributed. 10. The Applicant complains that the purchaser's interest claimed on behalf of the estate of Peter Majinji Musembe was not considered during the succession proceedings. Whether that allegation was true or not is a matter that can only be determined upon hearing evidence and cannot be conclusively disposed of through a preliminary objection. 11. In the circumstances, this court is not satisfied that the parties in the present proceedings are the same as those in the earlier proceedings or that the issues relating to the alleged purchaser's interest and liability were heard and finally determined. The plea of res judicata is therefore not available to the respondent. 12. Consequently, the Notice of Motion dated 4th June 2026 is allowed, and the Preliminary Objection dated 20th November 2025 is hereby dismissed. 13. The application for revocation of grant dated 3rd March 2025 shall proceed for hearing and determination on its merits on 25.11.2026. 14. Costs shall be in the cause. 15. It is so ordered. 16. Right of Appeal 30 days. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 30TH DAY OF JUNE,2026.** **S.N.MBUNGI** **JUDGE** **In the Presence of:-** CA: Zilda/Velma Ms. Kadenyi for the objector present online. Ms. Ogalo holding brief for Shitsama for the Petitioner present online.