In re Estate of Thanga (Deceased) (Succession Cause 73 of 2017) [2026] KEHC 12857 (KLR) (7 August 2026) (Ruling)

In re Estate of Thanga (Deceased) (Succession Cause 73 of 2017) [2026] KEHC 12857 (KLR) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12857 (KLR) Republic of Kenya In the High Court at Makueni Succession Cause 73 of 2017 JN Onyiego, J August 7, 2026 FORMERLY MACHAKOS HIGH COURT SUCCESSION CAUSE NO. 798 OF 2012) IN THE MATTER OF THE ESTATE OF JOSEPH NGUNDI THANGA(DECEASED) Between Nicholas Muthoka Ngundi Applicant and Susanah Wanza Eliud Respondent Ruling 1.This matter was initially filed at the High Court in Machakos as Succession Cause No. 798 of 2012 (Machakos Case), wherein the Applicant’s late husband, Eliud Mwania Mbune, together with one Sulphice Nzonga Muia, filed an application dated 02/11/2012 seeking injunctive orders against the Administrator pending the hearing and determination of the Petition for Grant of Letters of Administration. In the said application, they also complained of not having been included in the Petition as Creditors(liabilities) of the deceased’s estate. 2.The application was dismissed via a Ruling delivered on 20/11/2014 where the High Court at Machakos rejected the claim by Eliud Mwania Mbune and Sulphice Nzonga Muia that they had allegedly purchased Land Parcel Number Mbitini/Maatha/147 the subject of this succession case. The court held that there was no consent of the Land Control Board to validate the alleged transaction and further observed that, prima facie, monetary compensation would be the appropriate remedy, if any, available to the aggrieved parties. 3.Thereafter, the file was transferred to this court and registered as Makueni Succession Cause No. 73 of 2017 wherein an objection was lodged by Sulphice Nzonga Muia, claiming that Land Parcel Number Mbitini/Maatha/147 had been bequeathed to him. The Objection was dismissed via ruling delivered on 16/10/2023 on the ground that the purported will had not been proved to be a will validly and voluntarily made by the deceased. 4.Subsequently, the Administrator petitioned for Confirmation of Grant, which was confirmed on 20/05/2025. 5.The Applicant herein filed an application under Certificate of Urgency dated 22/09/2025 seeking, inter alia, the following orders;a.That the application herein be certified urgent and service thereof be dispensed with in the first instance;b.That an order of injunction be issued restraining the Respondent, whether by himself, his agents, servants and/or any person claiming under him, from disposing off, subdividing, transferring and/or in any manner interfering with the Applicant’s use and occupation of Land Parcel Number Mbitini/Maatha/147 pending the hearing and determination of the summons herein;c.That the Grant of Letters of Administration Intestate issued to the Administrator/Respondent by this Honourable Court on 11/05/2017 and confirmed on 20/05/2025 be revoked and/or annulled;d.That all subsequent dealings in the estate of the deceased, and in particular the transmission of Land Parcel Number Mbitini/Maatha/147 to the Administrator/Respondent, be reversed and/or annulled and ownership thereof revert to the deceased;e.That the costs of the Application be paid out of the estate. 6.The Administrator filed a response to the application and further reacted by filing an application under Certificate of Urgency dated 19/01/2026. On 05/05/2026, this court directed that the Administrator’s application be heard first. 7.It seeks the following orders:a.Spent.b.That this Honourable Court be pleased to find that the issues raised in the Summons are res judicata, the same having been conclusively determined in Machakos High Court Succession Cause No. 798 of 2012 and Makueni High Court Succession Cause No. 73 of 2017;c.That this Honourable Court be pleased to find that it lacks jurisdiction to grant the injunctive orders sought in the Summons, such jurisdiction being exclusively vested in the Environment and Land Court;d.That this Honourable Court be pleased to find that the Applicant/Respondent Susanah Wanza Eliud, lacks locus standi to institute the present Summons, the Limited Grant issued to her being restricted solely to proceedings before the Environment and Land Court;e.That this Honourable Court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of the case;f.That the costs of the application be borne by the Applicant/Respondent. 8.The Application is supported by the grounds on its face and the Administrator’s affidavit. The gist of the application is that the issue of ownership and alleged interest of Susanah Wanzah Eliud in the suit land; which forms part of the estate was conclusively litigated and determined in the Machakos case via a ruling delivered on 20/11/2014. That the Machakos High Court decision was affirmed by this court via a ruling delivered on 16/10/2023. 9.That, the Respondent testified as a witness in the said proceedings on behalf of her late husband and is therefore fully aware of the court determinations. 10.That, the present Summons for Revocation is therefore res judicata as the parties are litigating under the same title, the subject matter being identical and the issues having been conclusively determined by a competent court. 11.That prayer (3) of the Summons for Revocation of Grant seeks injunctive orders restraining dealings in land which relief falls within the exclusive jurisdiction of the Environment & Land Court (ELC). 12.That the Respondent lacks locus standi to institute the present Summons as the Limited Grant issued in Makueni Magistrate’s Court Miscellaneous Succession Cause No. E063 of 2025 dated 01/08/2025 only authorizes her to file and defend proceedings before the ELC. Response 13.The application is opposed through the Respondent’s Replying Affidavit sworn on 28/05/2026 where she deposed that she has been residing on land parcel Mbitini/Maatha/147 (Suit Land) from the year 1986 after it was sold to her deceased husband by Joseph Ngundi Nthanga; the deceased herein. The Sale Agreement is exhibited as SWE1. 14.That, Joseph Ngundi Nthanga died before transferring the land to her husband and the Applicant has at all material times been aware that his father sold the suit land. That, her deceased husband was buried on the suit land and the Applicant did not oppose. 15.That, she used to take care of the Applicant’s father before his demise and had taken him as part of her family because the Applicant had settled elsewhere. That, she was not a party in the Machakos case where it is alleged that the issue in the suit land was conclusively determined. That, the ruling delivered by this court on 16/10/2023 was on the issue of a will by a different party which is totally different from the application she has filed. 16.That, all the people in the area have always known that the suit land belongs to her and on 03/03/2026 when murram was being harvested in the suit land, the Applicant agreed to share the revenue equally with her because he knows very well that the suit land belongs to her. An Agreement is exhibited as SWE2. 17.That, if her Application dated 22/09/2025 is not heard, she will be homeless and her right to shelter will be infringed as the suit land is her only home. 18.The Application was canvassed through written submissions. Administrator/Applicant’s submissions. 19.The issues for determination were stated to be;a.Whether Susanah Wanza Eliud, possesses the requisite legal capacity and locus standi to file and prosecute the application dated 22/09/2025.b.Whether the application dated 22/09/2025 is res judicata? 20.As to whether the Respondent has the requisite locus standi to file and prosecute the application dated 22/09/2025, it was submitted in the negative for the reason that the Grant issued to her on 11/08/2025 is solely for the purpose of filing and defending an ELC suit at Makueni Law Courts on behalf of Eliud Mwania Mbune. Reliance was placed on the case of Ibrahim -vs- Hassan & Charles Kimenyi Macharia [2019] eKLR for the submission that a party who lacks locus standi cannot be heard even if he has a case worth listening to. 21.It was submitted that the Respondent is not a beneficiary of the estate and that her interest in these proceedings, if any, is solely derived from the alleged claim of her late husband, Eliud Mwania Mbune, over the suit land. That, the claim was conclusively determined by both the High Court at Machakos and this Honourable Court, which found that the alleged transaction was invalid for want of consent of the Land Control Board. 22.As to whether the application dated 22/09/2025 is res judicata, it was submitted that the doctrine applies not only to the issues raised in the first suit, but also to all issues which, by reasonable diligence, the parties ought to have raised in that first suit. That, parties are required to bring forward their entire claims in the first suit rather than to litigate the issues in instalments. That, if from the nature of the case, an issue ought to have been raised in the first suit but due to accident, inadvertence or negligence it was not raised, the court will not allow it to be raised subsequently (Henderson -vs- Henderson [1843] 67 ER 313). 23.It was submitted that parties will not be permitted to evade the doctrine of res judicata by adding new parties or introducing a new cause of action so as to seek the same remedy as that sought in the first suit. 24.It was submitted that the Respondent testified as DW2 in the objection proceedings, as captured at paragraph 8 of the Ruling delivered on 16/10/2023 and that having actively participated in those proceedings, she was fully aware of the issues in controversy and the findings made by this Honourable Court. That, her present attempt to relitigate the same matters is not only misconceived but also a clear abuse of the court process. 25.It was submitted that although the Respondent has approached the court in the capacity of the Legal Representative of the Estate of Eliud Mwania Mbune, she is plainly claiming under the same title and interest previously asserted by her late husband. It was contended that the doctrine of res judicata prevents a party from merely changing the form of proceedings or presenting the same dispute through a different representative. 26.It was submitted that the issues raised in the Summons for Revocation of Grant are directly and substantially the same issues that were determined by the Machakos Court and by this Honourable Court hence the Respondent is inviting this court to sit on appeal over its own decision and that of a court of concurrent jurisdiction. 27.It was submitted that the Respondent had filed another application dated 04/04/2024, founded on substantially the same facts and allegations, but it was struck out by this Court (Matheka J), on 03/10/2024 for failing to establish any liability against the estate of the deceased. It was contended that a litigant cannot be permitted to continually shift the goalposts and relitigate issues that have already been conclusively determined by courts of competent jurisdiction. 28.It was submitted that the issue of the alleged purchasers of the suit land has already been directly and substantially determined by this Court vide the directions and findings of 03/10/2024 where this Court (Matheka J), expressly held that the Applicant had failed to establish any liability against the estate of the deceased arising from the alleged purchase. That, the effect of the said finding is that no enforceable claim or liability exists against the estate in favour of the alleged purchaser. 29.Reliance was placed on the case of re Estate of Joshua A. Visaho (2019) eKLR for the submission that Creditors’ claims must either be admitted by Administrators or proved before a court of law and reduced into a decree of a court of competent jurisdiction. It was contended that in this case, no such decree exists in favour of the alleged purchasers and their claims remain unproven and legally unenforceable against the estate. That, a mere allegation of purchase of land from a deceased person does not, without more, confer the status of beneficiary or Creditor of the estate. 30.Further reliance was placed on re Estate of Musau Kitavi (Deceased) [2022] eKLR for the submission that purchasers or Claimants to estate property, if not dependants or beneficiaries, must pursue their claims in the Environment and Land Court because succession proceedings are not the proper forum for determination of ownership disputes. 31.Reliance was also placed on re Estate of Alfred Mwai Ngenye (Deceased) (2025) eKLR for the submission that a purchaser is not an heir or beneficiary of a deceased estate and lacks locus standi in succession proceedings. Respondent’s submissions. 32.It was submitted that Article 152(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act enjoin the court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. That, the court must not encourage technical objections which impede substantive justice. 33.It was submitted that this court is yet to hear the application by the Respondent hence allowing the current application will be prejudicial to the Respondent. 34.Reference was made to Section 7 of the Civil Procedure Rules for the submission that the Respondent has never been a party in this matter hence there is no way the same can be res judicata. 35.Having looked at the application, Replying Affidavit and rival submissions, the only issue for determination is whether the application dated 22/09/2025 is res judicata. Analysis and determination. 36.The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act 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.” 37.In Communications Commission of Kenya & 5 others -vs- Royal Media Services Limited & 5 Others [2014] eKLR, the Supreme Court expressed itself as follows on the issue of res judicata;“[317]The concept of res judicata operates to prevent causes of action, or issues from being re-litigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings….[319]There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent Court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title…(Emphasis supplied).” 38.In this case, the Applicant claims that the application dated 22/09/2025, filed by the Respondent, is res judicata because the issues raised therein were conclusively determined by the Machakos Court and this Court via Rulings delivered on 20/11/2014 and 16/10/2023 respectively. 39.The application before the Machakos Court was filed by Eliud Mwania Mbune (late husband of Respondent herein) and Sulphice Nzonga Muia where they sought injunctive orders against the Applicant herein with regard to the suit Land Parcel No. Mbiini/Maatha/147 which is the only asset of the estate herein. They claimed to have bought some four portions out of the suit land from the deceased herein who is the father of the Applicant herein. In essence, they claimed to be Creditors of the estate. In declining the application, the Machakos Court (Thuranira Jaden J), found that none of the Applicants had exhibited the consent of the Land Control Board and as such, their remedy, if any, lay in monetary compensation. 40.The file was transferred to this court on 21/02/2017 and on 18/09/2017, Letters of Administration were issued to the Applicant herein but the file remained dormant until 18/10/2018 when it was dismissed for want of prosecution. 41.The Petitioner Nicholas Muthoka Ngundi applied for reinstatement and Confirmation of Grant which prompted an Objection from Sulphice Nzonga Muia culminating in the Ruling of 16/10/2023 (Dulu J). The Objector claimed that the Petitioner had concealed the existence of a will in which the deceased had willed the suit land to Eliud Mwania Mbune which suit land would then go to the Objector in the event of death of Eliud Mwania Mbune. In declining the application, the Court stated that the issue of the interest in the suit land between the Petitioner and Objector had been determined by the Machakos Court. Secondly, the Court stated that the purported will was raised too late in the day as it was never mentioned in the first objection. 42.Through an application dated 04/04/2024, the Respondent sought stay of proceedings in this Succession Cause pending the hearing and determination of Makueni ELC Suit No. E001 of 2024. It was grounded on the deposition that Susanah Wanza Eliud in conjunction with her deceased husband bought the whole suit land from Joseph Ngundi Nthanga in the year 1986. In declining the application via directions issued on 03/10/2024, this Court (Matheka J), stated that although the application was unopposed, the Applicant’s claim had not been established as a liability of the estate. 43.The application dated 22/09/2025, which is said to be res judicata, is a Summons for Revocation/Rectification of Grant filed by the Respondent herein seeking various orders as indicated herein above. It is this application which is being challenged by way of a preliminary Objection coined as an application dated 19-1-2026 anchored on grounds that its res jusdicata. 44.From a perusal of the pleadings and proceedings highlighted herein above, it is clear that the constant subject matter is the suit land (Mbitini/Maatha/147). It is not in dispute that in the a foresaid Machakos Case, the Respondent’s late husband claimed to have bought the suit land from the deceased herein and in the Objection raised before this Court, Sulphice Nzonga Muia claimed that the entire suit land had been willed to the Respondent’s late husband. 45.The claim of ownership by the Respondent’s late husband, Eliud Mwania Mbune, was therefore constant in the two proceedings and the only difference was the route being used by the Claimants to achieve the said ownership i.e. in the Machakos Case, the claim of ownership was based on purchase and the one before this court was based on a will. 46.In the application dated 22/09/2025, the ground relied on by the Respondent to seek revocation of the grant is that her late husband had purchased the entire suit land from the deceased herein. It is therefore evident that the claim of ownership by or on behalf of Eliud Mwania Mbune was directly and substantially in issue in the former proceedings and is now directly and substantially in issue in the application dated 22/09/2025. 47.With regard to the parties, the Applicant herein has been constant due to his role of being the Administrator of the estate. On the other hand, the parties claiming ownership of the suit land have mutated from Eliud Mwania Mbune to Sulphice Nzonga Muia to Susanah Wanza Eliud. Consequently, it is evident that Sulphice and Susanah are advancing the original claim by the late Eliud Mwania Mbune and as such, they qualify as ‘parties under whom the late Eliud Mwania Mbune was claiming.’ The second limb of Section 7 of the CPA has therefore been fulfilled. 48.As to whether this court is ‘competent to try such subsequent suit’, the ‘subsequent suit’ in this case is the application dated 22/09/2025 for Revocation/Rectification of the Grant issued and confirmed to the Applicant herein. It is trite that the High Court has jurisdiction in succession matters and applications for Revocation/Rectification are done in succession proceedings as per the provisions of the Law of Succession Act, Cap 160 Laws of Kenya (the Act). 49.Section 47 of the Act specifically provides that; ‘The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.’ 50.From the foregoing, it is my considered view that the application dated 22/09/2025 is res judicata. In fact, the issues being raised in that application have been determined by a Court of competent jurisdiction and in this case the High Court which is a court of concurrent jurisdiction. The Respondent is simply inviting the Court to sit on its own decision as an Appellate Court. 51.Having lost two almost identical applications seeking ownership of the same land, the Applicant herein who was at one point a witness to her husband claiming the same land and similar orders for injunction, cannot claim to be an independent party so as to re-open the same suit. To allow the application dated 22-9-2025 to continue will be an absurdity in litigation. If there is any remedy for compensation on purchaser’s interest or otherwise, it lies in the ELC. 52.The Applicant also raised the issue of Respondent’s lack of locus standi. I have looked at the grant which the Respondent is using to sue on behalf of her husband’s estate. The same was issued in Makueni CM Misc Succession Cause No. E063 of 2025 and is limited to the purpose of ‘filing and defending an ELC suit at Makueni Law Courts on behalf of Eliud Mwania Mbune’. 53.The basis of a limited grant is Section 54 of the Act which provides;“A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.” 54.In the persuasive case of Julian Adoyo Ongunga & Another -vs- Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR, the Court (Mrima J) stated;“ 15.The law further provides for various forms of limited or special grants. They include, but not limited to… and due to their limited nature, each such grant ought to be used for that specific purpose only. Given that more than one limited grant or a combination of grants can be issued depending on the circumstances of a case, there is every reason to deal with a limited grant as it specifically provides. That will undoubtedly bring order and decorum in dealing with an estate of a deceased person noting that there may be need to obtain a full grant in future… 20…Turning to the grant in this matter, the Respondent obtained and produced in evidence a Limited Grant of Letters of Administration Ad Colligenda Bona as the basis of his locus standi in the suit. I have carefully looked at the wording of the said grant which partly states as follows… 27.I believe I have said enough on the issue. Back to the matter at hand, I have already reproduced the wording of the limited grant of letters of administration ad colligenda bona above. I have also carefully gone through both the typed and the handwritten record before the trial court. Looking at the grant and the record it is clear that the limited grant of letters of administration ad colligenda bona issued to and produced in evidence by the Respondent herein does not benefit from the above exceptions. The same was issued for the specific purpose'.....only of collecting and getting in and receiving the estate and doing such things as may be necessary for the preservation of the same and until further representation be granted ......' 29.In this matter therefore the Respondent lacked the requisite locus standi to institute and/or maintain the suit. The result is that all the proceedings before the trial court were instituted and maintained by a person who lacked the legal capacity to do so. They are indeed a nullity and as such lack the legal leg to stand on. In coming to this finding this Court is alive to the truism that the matter is quite an old one and involves the loss of a loved one in a family. Be that as it may, it is this Court's belief that all is not lost as the matter can be legally revisited.” 55.In my view, the Respondent’s Limited Grant issued to represent the estate of her late husband in ELC Court is applicable in defending and or prosecuting any legal proceedings for or against the estate of the deceased husband. The Respondent cannot be expected to seek afresh Limited Grant every time a new case arises against or for the interest of the late husband’s estate. In the circumstances, the grant issued to Susanah Wanza Eliud is valid for even prosecuting these proceedings as a Personal Legal Representative of her late husband. Consequently, it does confer locus standi on her to represent her husband’s estate’s interest in these proceedings. 56.In view of the above finding, the only avenue available to seek possible compensatory remedy is the ELC. Having not appealed against the Machakos Court decision and later the Makueni Court decision, the Respondent cannot sneak similar application through the backdoor. She can concentrate on her ELC case and try her luck there. 57.Having held as above, the Applicant’s/Respondent’s application dated 19-1-2026 be and is hereby allowed and the Objector/ Applicant’s application dated 22-9-2025 be and is hereby struck out for being res judicata. Each party to bear own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF AUGUST 2026............................................ J.N. ONYIEGOJUDGEJUDGE