https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8040

In re Estate of Shah (Deceased) (Succession Cause 15 of 2017) [2026] KEHC 8040 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEHC 8040 (KLR) Republic of Kenya In the High Court at Kisumu Succession Cause 15 of 2017 JM Omido, J June 8, 2026 IN THE MATTER OF THE ESTATE OF SUDHA RAJNIKANT SHAH AND IN THE MATTER OF AN APPLICATION BY Between Prashant Rajnikant Shah 1st Caveator Sonal Rajnikant Shah 2nd Caveator and Ronak Rah Shah and Ashok Khetshi Shah (As Executors of the Estate of Sudha Rajnikant Shah - Deceased) Executor and Shakunt Rajnikant Shah Respondent Ruling 1.The Executors and Caveators herein, through their respective learned Counsel, Mr. Menezes and Mr. Otieno, raised a preliminary objection touching on the manner in which Mr. Okero, Senior Counsel, is prosecuting the Respondent’s chamber summons application dated 19th March, 2026. 2.The gravamen of the objection is that the Respondent’s chamber summons application, is being argued in a manner that introduces and relies upon matters of fact which are neither specifically pleaded in the said application nor deposed to in the supporting affidavit. 3.It is the contention of learned Counsel for the Executors and Caveators that the Respondent, through his submissions, is impermissibly introducing extraneous factual matters which are not anchored in the body of the application or the supporting affidavit, thereby prejudicing the objecting parties. 4.Counsel argue that such a course of action amounts to an ambush, in that the Executors and Caveators are thereby deprived of an opportunity to respond to those matters through affidavit evidence, having not been put on notice of the same in the application or supporting affidavit. They pray that the court sustains their objection. 5.Learned Senior Counsel, Mr. Okero, opposes the objection and submits that the same is intended to obstruct or otherwise inhibit the Respondent from fully and effectively prosecuting his application before the Court. 6.Counsel for the Respondent further submits that the matters complained of, though not expressly pleaded in the body of the application or set out in the supporting affidavit, are nonetheless matters that are already part of the court record, having been contained in the pleadings and documentary material filed by the respective parties, particularly those filed by the Executors, as well as in the oral testimony of a witness taken and recorded on 4th March, 2026, which, according to Counsel, include admissions made under oath. 7.It is further contended on behalf of the Respondent that where matters are already part of the court record, a party is entitled to rely upon and make reference to the same in submissions without the necessity of re-pleading them in an application or re-deposing to them in affidavit evidence. 8.Counsel further argues that both objecting Counsel, being on record for the Executors and the Caveators from the inception of the proceedings, are fully conversant with the contents of the record and therefore cannot properly allege surprise or ambush arising from reference thereto in submissions in urging the application. 9.Learned Senior Counsel further submits that it would be unnecessary and duplicative to require a party to annex documents already forming part of the court record or to reiterate, by way of affidavit, matters that are already properly on record and available to all parties and the Court. 10.In conclusion, Counsel for the Respondent maintains that to uphold the objection would be tantamount to denying the Respondent the right to be heard fully and to effectively present his case, thereby occasioning a violation of the fundamental right to a fair hearing. He prays that the objection be dismissed. 11.In brief rejoinder, learned Counsel for the Executors and Caveators reiterate that while parties are at liberty to refer to matters already on the court record, fairness and procedural propriety demand that specific reference to such matters be made within the application and/or supporting affidavit. This, it is argued, ensures that the opposing parties are adequately placed on notice and afforded a fair and meaningful opportunity to respond thereto by way of replying affidavit evidence. 12.Having considered the objection and the submissions of all the three Counsel, I deduce the issues presented for adjudication to be as follows:a.Whether the Respondent, in prosecuting the chamber summons application dated 19th March, 2026, is entitled to rely in his submissions on matters of fact that are not expressly pleaded in the application or deposed to in the supporting affidavit, but which are part of the court record, including pleadings, documentary material and oral testimony previously taken in the proceedings.b.Whether, in the circumstances of this case, the Respondent’s reliance on such matters in submissions amounts to procedural unfairness or an ambush against the Executors and Caveators, thereby necessitating the exclusion of those matters or sustaining the preliminary objection, or whether such reliance is permissible without offending the rules of fair hearing and procedural propriety. 13.I will proceed to address the two issues. 14.In resolving the first issue, the Court is guided by the well-established principle that submissions do not constitute evidence and cannot be a substitute for properly adduced evidentiary material before the Court. The Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR emphatically stated as follows:“Submissions cannot take the place of evidence. … Submissions are generally parties’ ‘marketing language’, each side endeavouring to convince the court that its case is the better one. Submissions … do not constitute evidence at all.” 15.Submissions serve the limited function of crystallising, organising and highlighting the respective positions taken by each party on the basis of the pleadings and evidence already on record. They are intended to assist the Court by narrowing the issues for determination, drawing attention to the relevant facts as established through evidence and articulating the legal arguments that each party relies upon in support of its case, but they do not constitute an independent source of facts or evidence upon which a court may base its findings. 16.Flowing from the above authority, it is evident that the evidential foundation of any application must be found within the pleadings and the supporting affidavit(s), as opposed to Counsel’s submissions. The procedural architecture under the Civil Procedure Rules is deliberate, in that pleadings are intended to contain only material facts and not evidence, while affidavits serve as the proper mode through which factual averments are introduced on oath and subjected to judicial scrutiny. 17.This position is reinforced by Order 2 Rule 3 of the Civil Procedure Rules, which requires that pleadings contain only a statement in a summary form of the material fact but not the evidence by which those facts are to be proved. 18.The Court in Njenga v Ngigi & 2 others [2024] KEHC 5837 (KLR) reiterated this principle in clear terms, holding that submissions do not constitute evidence, and it is improper for a party to seek to introduce evidentiary material through submissions rather than through the appropriate procedural means. 19.In light of the foregoing legal framework, it follows that a party cannot properly seek to introduce new factual matters, or to supplement deficiencies in its pleadings or affidavit evidence, through written or oral submissions. To permit such a course would offend the evidentiary rules governing civil litigation and would undermine the adversarial process, which requires that parties be placed on notice of the case they are required to meet and be afforded an opportunity to respond by way of admissible evidence. 20.The Court further notes that the rationale behind this strict distinction between pleadings, affidavits and submissions is to preserve fairness in litigation and to prevent trial by ambush. Where factual matters are not pleaded or deposed to on oath, the opposing party is deprived of a fair opportunity to traverse and respond to them through counter-affidavits or other evidentiary means. This would be contrary to the basic tenets of procedural fairness and the right to a fair hearing. 21.Applying the foregoing principles to the present case, the Court finds that any attempt by the Respondent to rely, through submissions, on factual matters not contained in the chamber summons application or the supporting affidavit is procedurally impermissible. 22.Even where such matters may appear elsewhere on the court record, they do not thereby become automatically admissible for the purposes of determining the instant application unless properly brought into issue through the pleading itself or affidavit evidence and placed before the Court in a manner that allows the opposing parties to respond. To hold otherwise would collapse the distinction between evidence and argument, and would permit parties to circumvent the mandatory rules governing proof of facts in civil proceedings. 23.In the premises, the Court is persuaded that the Executors and Caveators are correct in their objection on this point. The Respondent cannot, in law, enlarge or supplement the evidentiary basis of his application through submissions by introducing factual assertions not supported by the application or supporting affidavit. 24.The first issue is therefore resolved in favour of the Executors and Caveators. 25.Now to the second issue for determination, which is whether, in the circumstances of this case, the Respondent’s reliance in submissions on factual matters not expressly pleaded in the chamber summons application or deposed to in the supporting affidavit, even where such matters are alleged to be part of the court record, amounts to procedural unfairness or an ambush against the Executors and Caveators. 26.Although the Respondent contends that the impugned factual material is drawn from the court record, the critical consideration is not merely whether such material exists somewhere in the file, but whether it has been properly brought into issue in the instant application in a manner that accords the opposing parties an opportunity to respond. 27.Where reliance is placed on matters not pleaded or deposed to, the opposing parties are effectively deprived of the opportunity to challenge, contextualise or rebut those matters through affidavit evidence. 28.In the premises, the Court finds that the Respondent’s approach, in so far as it introduces and relies upon factual matters outside the application and supporting affidavit, results in procedural unfairness to the Executors and Caveators. It offends the principle of fair hearing and the requirement of procedural propriety in adversarial proceedings. 29.Accordingly, the second issue is resolved in favour of the Executors and Caveators. 30.The result that follows is that the preliminary objection is upheld to the extent that the impugned factual reliance in submissions is hereby disallowed. 31.Notwithstanding the foregoing findings, the Court is mindful that its ultimate duty is to do substantive justice to all parties before it, and not to shut out a party from being heard on account of procedural missteps capable of rectification. 32.Accordingly, while the preliminary objection has been upheld, the Court deems it appropriate, in the interests of justice, to grant the Respondent leave to file and serve a further or supplementary affidavit within fourteen (14) days from the date hereof to address all the matters relating to the application. Upon service of the said affidavit, the Executors and Caveators shall be at liberty to file and serve their respective replying and/or further affidavits, as the case may be, within fourteen (14) days of service of the Respondent’s further or supplementary affidavit. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 8TH DAY OF JUNE, 2026.JOE M. OMIDO.JUDGEFor The Executors: Mr. Menezes.For The Caveators: Mr. Otieno.For Respondent: Mr. Okero, Sc.Court Assistants: Mr. Ngoge & Mr. Juma.Court: Further directions are issued that the Respondent’s chamber summons dated 19th March, 2026 will be heard afresh by way of written submissions.The Respondent shall file and serve submissions within 14 days of receipt of the last of the responses.The Caveators and the Executors shall file and serve submissions within 14 days of receipt of the Respondent’s submissions.The Respondent shall file and serve supplementary submissions, if need be, within 7 days of receipt of the last of the Caveators/Respondent’s submissions.The dates that the court had set for further hearing (8th and 9th July, 2026) are hereby vacated.The matter to be mentioned for further directions on 17th September, 2026.A copy of the ruling and directions issued today to be served by the Respondent upon the law firm of Mukite Musangi & Co. Advocates