https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9088

In re Estate of Mbogo (Deceased) (Probate & Administration 18 of 2007) [2026] KEHC 9088 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEHC 9088 (KLR) Republic of Kenya In the High Court at Nyeri Probate & Administration 18 of 2007 MA Odero, J June 29, 2026 IN THE MATTER OF THE ESTATE OF WACHIRA WANJAHI MBOGO (DECEASED) Ruling 1.The Respondent Ndirangu Wachira Wanjahi has filed this Notice of Preliminary Objection dated 3rd October 2025 seeking to have the summons for Revocation/Annulment of Grant dated 4th November 2024 struck out on the following grounds:-“ 1.That the Summons for revocation and annulment of Grant dated 4th November 2024 is Res Judicata vide the Rulings of this Honourable Court dated 15th June 2023 - 26th June 2024 and 21st March 2025. 2.That the Summons for revocation and/or Annulment of Grant dated 4th November 2024 is therefore misconceived and incompetent. 2.The Applicant Esther Wangui Gitonga filed Grounds of opposition dated 15th October 2025 to the Preliminary Objection. 3.The matter was canvassed by way of written submissions. The Administrator/Respondent filed the written submissions dated 5th March 2026 whilst the Applicant relied upon her written submissions dated 30th October 2025. Analysis And Determination 4.I have carefully considered the Preliminary Objection as well as the written submissions filed by both parties. The only issue for determination is whether the summons dated 4th November 2024 is Res Judicata. 5.The definition of what constitutes a Preliminary Objection was given in the case of Mukisa Biscuit Manufacturing Company Ltd -vs- West End Distributors Ltd [1969] E.A 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. Examples are an objection to the jurisdiction of the court, or a place of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…….. A Preliminary Objection is in the nature of what is used to be a demurrer. 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 exercise of judicial discretion.” 6.In Aviation & Allied Workers Union Kenya -vs- Kenya Airways Limited & 3 Others [2015] eKLR, the Supreme Court of Kenya stated that“a Preliminary Objection may only be raised on a “pure question of law” 7.There have been two previous rulings in this matter, the Ruling delivered by Hon. Lady Justice Muchemi on 15th June 2023 and a Ruling delivered by myself on 21st March 2025. The Respondent submits that in the light of the above-mentioned rulings the summons for revocation of Grant dated 4th November 2024 is Res Judicata. 8.Section 7 of the Civil Procedure Act sets out the principle of ‘Resjudicata’ in the following terms;-“ 7.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 under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relied claimed.” 9.The Court of Appeal expounded further on this principle in the case of IEBC -VS- Maina Kiai & 5 Others Civil Appeal No. 105 of 2017, where it was stated:-“Thus for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive, but conjunctive terms: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.” 10.The two previous rulings both referred to a Summons for revocation of Grant dated 8th July 2024 filed by the Applicants Samuel Maina Wachira and Charles Mwita Wambugu against the Administrator of the estate one Ndirangu Wachira Wanjohi. 11.Section 7 refers to a former suit filed by the “same parties”. The summons dated 4th November 2024 has as the Applicant one Esther Wangui Gitonga. This Esther Wangui was not a party in the summons of 8th July 2024 nor is there any indication that the two applicants were acting for her or on her behalf. The summons of 4th November 2024 has been filed by a totally different person against the same administrator. In the circumstances the principle of Res Judicata would not be applicable. 12.Accordingly I find no merit in this Preliminary objection. The same is dismissed in its entirety. Each party to meet their own costs. DATED IN NYERI THIS 29TH DAY OF JUNE 2026.…………………………MAUREEN A. ODEROJUDGE