https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12729

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HIGH COURT FAMILY CIVIL APPEAL NO. E005 OF 2025 IN THE MATTER OF THE ESTATE OF ILEVE ILUNGU (DECEASED) JOSEPHINE NDETO SILA…………………………………………………………………………APPELLANT VERSUS KALUNG’A ILEVE…………………………………………………………………………...1ST RESPONDENT MBAIKA NDETU MUIA………………………………………………………………….2ND RESPONDENT **JUDGMENT** ***(Being an Appeal from the Ruling of Hon. P.N Gesora Chief Magistrate in Makueni Succession Cause No. 45 of 2019 delivered on 25th April, 2025)*** 1. The appellant filed Summons for Revocation of grant dated 4th November, 2024 seeking to have the letters of administration and certificate of confirmation of grant issued to the 2nd respondent on 9th May, 2019 and 2nd October, 2019 respectively be revoked or annulled. The appellant further sought to have the title Nzaui/Kalamba/989 and Nzaui/Kalamba/990 resultant subdivision of Nzaui/Kalamba/433 revoked or cancelled and the title revert back to the name of Ileve Ilungu (deceased). 2. The appellant cited among other general grounds that respondents herein filed the petition for grant of letters of administration secretly without informing her or seeking her consent and thus excluded her and other lawful beneficiaries from the estate of the deceased Ileve Ilungu. 3. The appellant in the affidavit in support deposed that the 1st respondent us her mother whereas the 2nd respondent is her step-sister. She avers that when they were filing the petition for grant of letters of administration they failed to disclose all the survivors and beneficiaries of the deceased specifically leaving out her name. 4. The appellant further deposed that the respondents gave misleading information regarding the death of the deceased. 5. The 2nd respondent raised a preliminary objection dated 4th February, 2024 to the Summons for Revocation of grant dated 4th November, 2024 on the basis that the same was *res judicata* to Summons for Revocation of the grant dated 11th April, 2022 where ruling was delivered dismissing the same on 13th June, 2023. 6. The preliminary objection was heard by way of written submissions before the lower court. the trial court after considering the submissions and relying on Section 7 of the Civil Procedure Act found that the Summons for Revocation of grant dated 4th November, 2024 was *res judicata* to Summons for Revocation of grant dated 11th April, 2022 and upheld the preliminary objection. 7. The court reasoned that a similar application for revocation of the grant was heard and determined by the court on 13th June, 2023 where oral evidence was adduced and one of the witnesses was the appellant herein. As such the appellant cannot claim that he was not served with the court papers. The court found that the issues raised by the appellant in Summons for Revocation of grant dated 4th November, 2024 were directly and substantially in issue in the Summons for Revocation of grant dated 11th April, 2022. 8. The appellant aggrieved by the finding of the lower court lodged this appeal to the High Court raising 9 grounds. The appeal was heard by way of written submissions. 9. The appellant submissions in support of the appeal are dated 6th February, 2026. The appellant gave the background of these proceedings and submitted that she was not a party to the Summons dated 11th April, 2022 save that she was called as a witness. Even then her desire to be recognized as entitled to share of the estate was not considered in those proceedings. 10. The appellant argue the entire proceedings were marred with fraudulence and concealment of relevant material facts as she was not involved until the grant was confirmed, therefore the finding of the lower court that she testified in the court in respect of the Summons dated 11th April, 2022 did not make her a party to those proceedings. 11. The respondent contested the appeal vide submissions dated 26th February, 2026. The respondent submitted that there is no dispute that there were two summons for revocation of grant issued on 9th May, 2019 and confirmed on 2nd October, 2019. One filed by 1st respondent dated 11th April, 2022 and the other by appellant dated 4th November, 2024. 12. The respondent submit that each summons seeks to revoke the grant issued herein on the grounds that no consent was obtained and they were not involved in the proceedings leading to the issuance of grant and confirmation thereafter. 13. The respondent submits that the issue raised in the summons were addressed in the earlier summons for revocation of the grant filed by the 1st respondent in the ruling delivered on 13th June, 2023 hence the appellant shouldn’t raise the same again. 14. Further the respondent submit that the appellant participated in the proceedings in summons dated 11th April, 2022 by giving evidence in court where the same grounds she is raised in her summons were fronted. It is argued that the appellant and 1st respondent who had file the first summons for revocation are daughter and mother. Consequently, the parties are the same. 15. Finally, the respondent submit that the issue raised in the appellant’s summons for revocation of grant were directly in issue in the earlier summons filed by the 1st respondent and they were adjudicated and decision rendered by the trial court. 16. I have considered the appeal, the submissions by the parties. It all boils down on whether the Summons for Revocation of grant dated 4th April, 2024 filed by the appellant is *res judicata* to Summons dated 11th April, 2022 filed by the 1st respondent Kalung’a Ileve. *Res judicata* is codified at Section 7 of the Civil Procedure Act as follows: ***“No Court shall try a 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.”*** 1. So, for *res judicata* to apply, the issue must be directly and substantially the same in both suits, in this case in both summons for revocation of grant. It is not just similar facts, but the issue and relief sought must be the same. 2. In the instant case the summons for revocation of grant dated 11th April, 2022 was on the ground that the grant was obtained fraudulently by concealment from court material facts and that the distribution of the estate was contrary to Section 40 of the Law of Succession Act. It was also alleged that 1st respondent did not consent to the issuance of the grant. The 1st respondent is the mother of the appellant. it was further grounded on omission of some of the beneficiaries. 3. Similarly, the summons for revocation of grant dated 4th November, 2024 are based on similar grounds that the grant was obtained fraudulently and concealment of material facts. The appellant also contend that she was not involved in the proceedings to obtain grant and her consent was never sought. 4. From the foregoing it is clear that the legal issue involved in both summons for revocation of grant were the same. The relief sought was the same. The court rendered itself after hearing viva voce evidence. 5. Secondly for *res judicata* to apply, the parties must be the same including persons claiming under the original parties. Theis explained in *Explanation 6* where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others. This would include all persons interested in such right who shall be deemed to claim under the persons so litigating. 6. In the instant case, the trial court found that the appellant having participated in the earlier summons for revocation of grant, she was aware of the same. Although the trial court did explore this position, the assumption by the trial was that the appellant was aware of the proceedings for revocation having testified and thus she should have agitated her right at that time, else the appellant is deemed to have litigated through the applicant in the earlier summons. 7. I have examined both summons for revocation of grant and the record. It is notable that the appellant was a witness in the earlier summons where the 1st respondent who she has admitted is her mother was one of the applicants. The grounds for revocation were the same. It is clear that the appellant at the time she testified she knew that she had interest in the matter as beneficiary. It is also undisputed that at the time the earlier summons for revocation of grant was heard and determined the appellant knew of the proceedings, and had an opportunity to object, but she didn’t. 8. It is therefore clear that at the time the earlier summons for revocation of grant where the appellant participated as a witness, was heard the appellant knew that she had legal interest in the estate which was under litigation. It is also clear from the evidence of the 1st respondent that she indicated that the appellant was one of her children. All the other applicants in the summons dated 11th Apri, 2022l were siblings of the appellant. Practically, the applicants in summons dated 11th April, 2022 litigated on behalf of the common interest and the irresistible presumption they all litigated under the same title. 9. From the foregoing, I agree with the trial court that the summons for revocation of grant dated 4th April, 2024 was *res judicata* summons dated 11th April, 2022 as the legal issues were the same and the relief sought is the same for the revocation of grant. Much as the appellant attempted to argue that she was not a party to those proceedings, the circumstances of this case as I have indicated, the appellant had a claim to the estate, she had knowledge of the same and all the issue raised were determined by the court. 10. I therefore find the appeal without merit and the same is dismissed. 11. Noting that this is a matter involving family, I make no orders as to costs. **Dated, signed and delivered virtually this 6th day of August, 2026.** **Francis Kyambia** **Judge of the High Court.**