https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9468

In re Estate of Gikuri (Deceased) (Succession Cause 559 of 2012) [2026] KEHC 9468 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9468 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 559 of 2012 DKN Magare, J June 25, 2026 IN THE MATTER OF THE ESTATE OF THE LATE FESTUS GAKUO GIKURI - DECEASED Between Curtis Gakuo Wahio (Though His Power of Attorney Grishon Gichuki Gakuo) Applicant and Titus Taiti Gakuo Respondent Ruling 1.The French have a saying that plus ça change, plus c'est la même chose. This means that the more things change them ore they remain the same. I delivered a ruling in this matter concluding this case forever. The administrator proceeded and concluded the transmission. However, a busy body, one Grishon Gichuki Gakuo, has now embarked on a journey into vanity. He has now engaged the Directorate of Criminal Investigations to investigate a matter this court has dealt with finality. A challenge was made vide an application dated 24.02.2016. I delivered my ruling on the matter and stated as follows:1.The matter has been fully dealt with. The applicant admits being aware of the matter. He has never prosecuted the application for the last 9 years. I have perused the same and note that none of the reasons set out in section 76 of the succession act apply to the applicant.2.There is prima facie nothing to hear. A question of acreage is for the administrators to deal with. In any case all parties are fully provided for. The matter cannot remain ad infinitum in court. The same is consequently dismissed with disbursements of kshs.20,000/= payable within 30 days to the 2nd respondent. 2.Grishon Gichuki Gakuo has now proceeded to complain with a view of appealing my decision to the DCI. He got a letter, from the DCI to investigate matters that were dealt with in my earlier ruling. Effectively, this is a process of appeal of the decision of the high court to the Directorate of Criminal Investigations. Directorate of Criminal Investigations have no jurisdiction to do so. 3.The new applicant has now sought the following orders in the summons for review dated 13.05.2026, in which they sought the following orders:1.That this Honourable Court be pleased to review and set aside its Ruling delivered on the 17th day of March 2025.2.That upon issuance of prayer 1 above, this Honourable Court be pleased to grant an order revoking the Grant of Letters of Administration Intestate issued on the 17.03.2025 to Titus Taiti Gakuo, and the resultant Certificate of Confirmation.3.That this Honourable Court be pleased to issue a fresh Grant of Letters of Administration Intestate to such fit and proper person(s) as it shall deem just.4.That the costs of this Application be provided for. 4.The respondent replied and stated that the same application was dealt with by the court vide a ruling dated 17.03.2025. The court inquired into the raison d'être for the summons for revocation. The advocate for the applicant indicated that a parcel measuring 0.46 acres has not been assigned to anyone after subdivision. He confirmed that it is no taken by parties and the land on the ground is fairly distributed. I did not find it necessary to inform the parties to have a look at the survey act and the physical planning act before raising issues that are clearly otiose. The point raised does not have any substance and is therefore of no consequence, it can be addressed by the maxim de minimis non curat lex, which holds that the law does not concern itself with trifles. 5.The grounds review was sought were based that the question of acreage being dealt with the administrators was an error apparent on the face of the record. 0.46 acres out of 13 acres are not accounted for. The same ought to be redistributed. Signatures on the application for conformation were forged in 2015. Transmission of Mahiga/Ugachuku/97 is tainted with lack of probity. 6.Grishon Gichuki Gakuo has sought revocation of grant and review. He is not entitled to both prayers. The first aspect is revocation. This was the subject matter of my ruling of 17.03.2025. Effectively the question of whether there was fraud warranting revocation is res judicata and cannot be re-opening directly or through subterfuge, surmise and hyperbole. 7.Res judicata is provided for under section 7 of the civil procedure act cap 21 laws of Kenya, which defines the doctrine of res judicata as follows: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. 8.The civil Procedure Act also provides explanations with respect to the application of the res judicata rule. In the case of re estate of Riungu Nkuuri (Deceased) [2021] eKLR the court addressed res judicata as follows:The test for determining the application of the doctrine of res-judicata in any given case is spelt out under section 7 of the civil procedure act. In Independent Electoral & Boundaries Commission Vs Maina Kiai & 5 Others [2017] eKLR, the supreme court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:"(a)the suit or issue was directly and substantially in issue in the former suit.(b)that former suit was between the same parties or parties under whom they or any of them claim.(c)those parties were litigating under the same title.(d)the issue was heard and finally determined in the former suit.(e)the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 9.Res judicata was earlier addressed in the case of E.T. v Attorney General & another [2012] KEHC 5506 (KLR), where, D. S. Majanja J, held that:57.The courts must always be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff is in the second suit is trying to bring before the court in another way and in a form a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and Others [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J., in the case of Njangu v Wambugu and Another Nairobi HCCC No. 2340 of 1991 (Unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata .... 10.The said sections of the civil procedure rules are applicable by dint of rule 63 of the probate and administration rules that provides as follows:(1)save as is in the act or in these rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the civil procedure rules, namely order 5, rule 2 to 34 and orders 11, 16, 19, 26, 40, 45 and 50 (cap. 21 , sub. Leg.), together with the high court (practice and procedure) rules (cap. 8, sub. Leg.), shall apply so far as relevant to proceedings under these rules 11.In essence therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson [1843-60] All E.R. Rep. 378, observed thus:Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. 12.Res judicata applies to applications just like suits. In the case of Julia Muthoni Githinji v African Banking Corporation Limited [2020] KEELC 272 (KLR), where J. M. Mutungi, J, held as follows:14.After a careful reappraisal of the application for injunction before the lower court, I have come to the conclusion that the application was resjudicata and the entire suit was subjudice as there was an active pending suit before a court of competent jurisdiction being Nakuru ELC No. 272 of 2017. All issues raised in the suit before the subordinate court could be properly litigated in the suit pending before the ELC. The filing of the suit by the appellant in the subordinate court when she had a similar suit in the ELC Court was an abuse of the Court process which the Court cannot countenance. 13.Further, in regard to applications being res judicata, the court SN Mutuku, J stated as follows in the case of Maumbwa & 3 others v Kisemei [2022] KEHC 10416 (KLR):20.By comparing the two applications and the authorities on res judicata, it is clear to me that the issues being canvassed in the application dated 11th January 2021 is res judicata. The issues in issue in that application were directly and substantially in issue in the application dated 13th September 2017. These issues relate to the same parties and these issues have been tried by a competent court. To my mind to bring the same issues between the same parties that have been determined by a court of competent jurisdiction is an abuse of the court process. 14.The question whether grant was obtained fraudulently has been put to bed permanently. Secondly the question whether a person has a power of attorney is irrelevant when it comes to personal matters and in particular succession. Warsame J, as he then was, addressed this in the case of Simeon Nyachae V Lazarus Ratemo Musa & Another [2007] KEHC 885 (KLR) as follows:Admittedly the plaintiff has nominated his son to prosecute this case meant to repair, restore and vindicate his character, reputation and dignity through a registered power of attorney. I think the power of attorney given to the son cannot be a substitute to the direct testimony of the plaintiff. And that the fact the son was given power to conduct and give evidence on behalf of the plaintiff cannot put him in the same shoes with the plaintiff. The witness can comfortably wear the shoes of the plaintiff in other circumstances, but i think in this particular case, he has failed to demonstrate that he can wear the shoes in order to vindicate the dignity and character of the father. In my view the witness cannot discount and/or disparage the publication merely because he was given a power of attorney. 15.By parity reasoning, a power of attorney does not give the done power to allege criminal conduct of personal nature. The donor knows whether or not he signed. In any case the question has since been determined by this court. This is person to the donor and it is the donor who knows circumstances of signing or otherwise. This was therefore a roundabout way of appeal the decision of this court to the dci instead of the court of appeal. 16.Secondly, the question of review cannot also be granted. Section 80 of the civil procedure act states that:Any person who considers himself aggrieved-(a)by a decree or order from which an appeal is allowed by this act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit”. 12.This is buttressed by order 45 of the civil procedure rules, which provides for review and it states as follows:(1)any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)a party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review” 12.Kuloba J in Lakesteel Supplies v Dr. Badia and another Kisumu HCCC No 191 of 1994 opined as follows in regard to review:The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 44 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made. 17.None of the parameters set out in section 80 have been met. The court made the decision with all these facts in situ. Secondly the allegation of 0.46 acres not transmitted is an engagement in a futile exercise. The court ruled so then and it rules so now. In any event, the issue raised is purely Sisyphus and querulant engaging in idle labour that essentially wastes the court’s time and that of the respondent. 18.The issue concerning the negligible and minuscule acreage allegedly lost during the subdivision is self-evident. Notably, the applicant does not contend that any beneficiary received an excess allocation of land. It is therefore surprising that, having personally inspected the property and the access roads traversing it, the applicant still seeks an explanation as to the whereabouts of the alleged 0.46 acres. 19.The court is left with the firm impression that the applicant is unwilling to bring this matter to a close. Litigation must, however, come to an end. This dispute has been litigated exhaustively, and there is no legal basis for reopening it. Accordingly, the matter must now rest and remain concluded. 20.Lastly, the succession cause has been fully concluded and there is nothing left for determination by this court. The grant has long been confirmed and the estate transmitted to the beneficiaries. The legal effect of a confirmed grant and completed transmission was addressed in the case of Kibunya v Kariuki & another [2024] KECA 1274 (KLR), where the court held that once administration of the estate has been completed and transmission effected, the succession proceedings come to an end. The court of appeal in the above matter stated as follows:15.The appellant’s complaint is that the 2nd deceased surreptitiously obtained letters of administration to the estate of their father to the exclusion of herself and her two sisters. The 2nd deceased died before the application for the revocation of the grant could be heard. He did not even file a response to the summons for revocation of the grant. Teresiah Mukuhi Muriithi who is one of the people proposed to be appointed in the place of the 2nd deceased cannot surely defend the interests of the 2nd deceased. Additionally, even though the respondents are the sons of the 2nd deceased, they are not in a position to defend the 2nd deceased for they never assisted him in administering the estate of the 1st deceased. The parties who bought the land from the deceased are not parties to the succession proceedings. Allowing the appellant’s application for substitution will put the properties of the purchasers at risk yet they have not been heard. Further, and as correctly submitted by the respondents, the estate of the 1st deceased was distributed and nothing remains to hassle over. 21.What orders are appropriate in the circumstances? First, the application is wholly devoid of merit and amounts to a waste of the court's time. Accordingly, it is hereby dismissed. The applicant is unrepresented and, in the circumstances, an award of costs in the conventional sense would not be appropriate. However, the respondents are entitled to reimbursement of their disbursements. Consequently, the applicant, Grishon Gichuki Gakuo, shall pay disbursements assessed at Kshs. 5,000/=. Finally, the succession cause has been fully concluded, the grant confirmed, and the estate transmitted to the beneficiaries. There being no further duties to be performed, the administrator is hereby discharged from the office of administrator, and the file is marked as closed. 22.Other than application for execution, there shall be no further applications in this cause save with leave of the court obtained prior to filing. Determination 23.In the upshot, the following orders are issued:a.Summons for review dated 13.05.2026 is hereby dismissed as it lacks merit.b.The applicant, Grishon Gichuki Gakuo, shall pay the Respondent’s disbursements of Ksh. 5,000/=. Payable within 30 days, in default execution to issue.c.The administrator is discharged.d.Other than application for execution, there shall be no further applications in this cause save with leave of the court obtained prior to filing.e.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI THIS 25TH DAY OF JUNE THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. RULING DELIVERED, EXTEMPORE IN OPEN COURT AND THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Titus Taiti, the Respondent present in personMr. Karuru for the ApplicantCourt Assistant - Martin