https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11030

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **SUCCESSION CAUSE NO. E033 OF 2021** **IN THE MATTER OF ANDREW KIPKEMEI SUNYAI (DECEASED)** **SOPHIA WANJIKU NGURU ..……………..…………….…APPLICANT** **VERSUS** **RACHAEL CHERONO SUNYAI ……………………..…...RESPONDENT** **RULING** 1. In this matter, a Grant was issued to the Respondent on 14th December 2021 and thereafter a Certificate of Confirmation of Grant was issued on 20th September 2022 detailing how the deceased’s estate comprising of KERICHO/KIPSONOI/1730 AND Plot Number 261, Mikindani Site would be distributed. 2. The Applicant filed an Application for Revocation of the Grant dated 17th February 2026. The Respondent then filed a Preliminary Objection dated 16th March 2026 where he stated that the Application for revocation was *res judicata* as this court had dismissed a similar Application dated 3rd April 2024. 3. Through her submissions dated 26th June 2026, the Respondent submitted that the present Application and the dismissed Application had the same subject matter and had a similar factual foundation. That the previous Application was dismissed for want of prosecution and the dismissal had not been challenged. She relied on **Henderson v Henderson (1843) 67 ER 313** and **Independent Electoral and Boundaries Commission v Maina Kiai & 5 others (2017) eKLR**. The Respondent further submitted that this court should not countenance the reopening of litigation simply because the litigant was dissatisfied with the consequences of her procedural defaults. 4. In response to the Preliminary Objection, through her written submissions dated 19th May 2026, the Applicant submitted that the present Application did not satisfy the doctrine of *res judicata* as the previous Application had not been heard and fully determined as the same was dismissed for non-attendance. She relied on **Tee Gee Electronics and Plastics Company Ltd v Kenya Industrial Estates Limited [2005] KLR 97 et.al.** That a dismissal arising out of non-attendance did not constitute a substantive pronouncement on the rights of the parties. 5. What constitutes a Preliminary Objection was set out in the oft cited case of **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696,** where it was held that: - ***“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 of the suit. Examples are an objection to the jurisdiction of the Court or a plea 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 used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. The Respondent anchored her Preliminary Objection on the doctrine of *res judicata*. **Section 7 of the Civil Procedure Act** provides that: - **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.** 1. The Supreme Court of Kenya in **John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR**) held: - ***“For res judicata to be invoked in a civil matter the following elements had to be demonstrated:*** * 1. ***there was a former judgment or order which was final;*** 2. ***the judgment or order was on merit;*** 3. ***the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** 4. ***there had to be between the first and the second action identical parties, subject matter and cause of action.*** ***The doctrine of res judicata was based on the principle of finality which was a matter of public policy. The principle of finality was one of the pillars upon which the judicial system was founded and the doctrine of res judicata prevented a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensured that litigation came to an end, and the verdict duly translated into fruit for one party, and liability for another party, conclusively……*** ***……. Though the doctrine of res judicata lent itself to promote the orderly administration of justice, it was not to be at the cost of real injustice. Rights kept on evolving, mutating, and assuming multifaceted dimensions it could be difficult to specify what was rarest and clearest.*** ***In granting exemptions to the applicability of res judicata, courts would consider whether there was potential for substantial injustice if a court did not hear a constitutional matter or issue on its merits. Before a court could arrive at such a conclusion, it had to examine the entirety of the circumstances as well as address the factors for and against the exercise of such discretionary power. In the alternative, a litigant had to demonstrate special circumstances warranting the court to make an exception.”*** (Emphasis mine) 1. I have looked at and considered the record. The Applicant had filed a similar Application for revocation of the Grant dated 3rd April 2024. The same was dismissed for want of prosecution on 22nd October 2024. In my view, I disagree with the Respondent that the present Application was *res judicata*. I say so because the previous Application dated 3rd April 2024 was dismissed on procedural technicalities and there was no final determination of the Application. A final determination would only arise after the court had considered and evaluated the pleadings and evidence. This was not the case. Therefore, it is my finding that declaring the present Application as *res judicata* would cause substantial injustice to the Applicant. 2. Flowing from the above, it is my finding that the Preliminary Objection dated 16th March 2026 has no merit and is dismissed. This allows the court to determine the Applicant’s Application for revocation of the Grant on merit. **Summons for Revocation dated 17th February 2026.** 1. The Applicant sought revocation of the Grant dated 14th December 2021. Through her Supporting Affidavit dated 17th February 2026, the Applicant stated that she was the deceased’s widow and their union was blessed with one issue called Faith Chebet Sunyai. That they were domiciled in Plot No. 261 Mikindani within Mombasa which the deceased allocated to her and their daughter during his lifetime and had been in occupation ever since. The Applicant further stated that ever since the death of the deceased, she had not received rental income from her tenants as the Respondent had directed that all rental income should be paid to her. 2. It was the Applicant’s case that the Respondent wanted to disinherit them and render them destitute. That the Respondent failed to notify them of her intention to obtain a Grant despite her knowledge that they were living on Plot No. 261 Mikindani. It was the Applicant’s further case that the Grant was obtained fraudulently by concealment of material facts and further that she did not consent to the process. 3. At the time of writing this Ruling, the Applicant had not submitted on her Application for Revocation of the Grant. **Response** 1. Through the Replying Affidavit dated 16th March 2026, the Respondent stated that the Applicant was not a beneficiary of the deceased’s estate and lacked authority to interfere with the administration of the deceased’s estate. That the Applicant had continuously attempted to usurp the Respondent’s mandate as administrator. The Respondent further stated that the Applicant was aware of the succession proceedings and failed to challenge the Grant at the appropriate time which was more than 2 years after the Grant had been confirmed. 2. It was the Respondent’s case that the Applicant’s delay was not merely procedural but went to the substance of the Application as it would occasion prejudice to the administration of the deceased’s estate. That the Applicant was guilty of the doctrine of latches. 3. The Respondent stated that she was the only legal wife to the deceased having solemnized their marriage on 23rd February 1995 and that she had no knowledge of the Applicant as the deceased’s wife. That cohabitation did not automatically give rise to a presumption of marriage. The Respondent further stated that in the absence of proof of a valid marriage, the Applicant could not purport to claim spousal status. That the Applicant had failed to demonstrate that they were dependent on the deceased during his lifetime. 4. It was the Respondent’s case that the allegations contained in the Chief’s Letter were untested and did not demonstrate marriage between the deceased and the Applicant. It was the Respondent’s further case that the Applicant had failed to bring herself within the ambit of **section 76 of the Law of Succession Act.** 5. Through her written submissions dated 26th June 2026, the Respondent submitted that the Applicant had not demonstrated that she had satisfied any of the grounds for revocation of the Grant as contained in **section 76 of the Law of Succession Act.** She relied on **re Estate of Stephen Kurgat Kimwei (Deceased) (2017) eKLR**. The Respondent further submitted that she had not failed as an administrator of the deceased’s estate and had at all times acted pursuant to the authority conferred upon her by the confirmed Grant. 6. It was the Respondent’s submission that the Applicant had failed to establish that she was a beneficiary of the deceased’s estate. That cohabitation did not create a marriage. She relied on **Hortensiah Wanjiku Yawe v Public Trustee [1976] KLR 318** and **Phyllis Njoki Karanja & 2 others v Rosemary Mueni Karanja & another (2009) eKLR.** It was the Respondent’s further submission that the Chief’s Letter was not proof of marriage as it was merely an administrative document meant to assist in identification and local administration. She relied on **section 29 of the Law of Succession Act.** 7. I have gone through the entire record, the Application for revocation of Grant dated 17th February 2026, the Replying Affidavit dated 16th March 2026, the Applicant’s Supplementary Affidavit dated 31st March 2026 and the Respondent’s written submissions dated 26th June 2026. The only issue for my determination was whether the Grant dated 14th December 2021 and confirmed on 20th September 2022 should be revoked. 8. The law on revocation of Grants is provided for in **Section 76 of the Law of Succession Act** which states that: - **A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-** **(a) that the proceedings to obtain the grant were defective in substance;** **(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;** **(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;** **(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-** **(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or** **(ii) to proceed diligently with the administration of the estate; or** **(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or** **(e) that the grant has become useless and inoperative through subsequent circumstances.** 1. The Applicant stated that she was the deceased’s second wife and their union bore an issue called Faith Chebet Sunyai. That the Respondent concealed this fact from the court when obtaining the Grant. On the other hand, the Respondent stated that she was the sole wife of the deceased and further stated that cohabitation did not prove marriage. To prove her case, the Applicant attached a Chief’s Letter as “SWN-1”. I have looked at the Chief’s Letter dated 13th July 2023 which stated that the Respondent was the deceased’s second wife and that Faith Chebet Sunyai was their daughter. The Respondent challenged the Chief’s Letter and stated that it could not be used to determine or conclude that a marriage existed between the Applicant and the deceased. 2. The importance of Chief’s Letters in identifying the deceased’s kin or beneficiaries has been stated in several authorities which include; in **re Estate of Stanley Mathenge Ruriga (Deceased) [2018] KEHC 4522 (KLR),** the court held: - ***“……. The purpose of the Chief letter is to ensure that the right party files succession……….*** 1. Similarly, in **re Estate of Mutaba Kioko alias Michael Mutava Kioko (Deceased) [2025] KEHC 8434 (KLR),** the court held: - ***“…..This Court takes judicial notice of the important role played by Chief’s letters in succession proceedings. When one files for letters of administration intestate, one of the crucial documents that is required is a letter from the chief. In the case of Ayako v Oronje [2024] KEHC 7641 (KLR) the court held that;*** ***“I should point out that the act of issuing a chief’s letter or that of local Administration in succession proceedings is Administrative, not legal, on the part of the local Administrator.*** ***The courts, traditionally, require the chiefs to assist the court to ascertain the immediate kindred of a Deceased person. The chiefs are considered reliable, as it is expected that he/she is well acquainted with the residents of his location. However, there is no law that binds the chiefs to issue such a letter (s).”*** 1. In **Stephen Kivuti Kiura v Anastacia Murugi Muthui & another [2021] KEHC 3694 (KLR),** the court held: - ***“……. It is trite law that dependency is a matter of fact and evidence has to be adduced to prove the same. Though the respondents listed the dependants, no birth certificates were produced or at the very least, a letter from the chief to show that the children exist.”*** 1. As earlier stated, the Chief’s Letter dated 13th July 2023 listed the Applicant as the deceased’s second wife and Faith Chebet as their daughter. I agree with the Respondent that the Chief’s Letter was not sufficient proof of marriage between the deceased and the Applicant. The Applicant bore the burden of producing additional evidence to prove the existence of a marriage between her and the deceased, a burden she failed to discharge. However, as the authorities above have demonstrated to which I agree and associate myself with, the Chief’s Letter was *prima facie* evidence that Faith Chebet was the deceased’s daughter. 2. The Applicant produced further corroborating evidence on this issue. She attached a Birth Certificate as “SWN-2”. I have looked at the Birth Certificate and it indicated that the deceased was the biological father of Faith Chebet. This fact was not challenged by the Respondent. It is my finding therefore that Faith Chebet was the deceased’s daughter and was a beneficiary as per the provisions of **section 29 of the Law of Succession Act.** 3. I have looked at the Certificate of Confirmation of Grant dated 20th September 2022 and there was no provision for Faith Chebet. This meant there was material non-disclosure by the Respondent when she was obtaining the Grant. It is therefore my finding that the Applicant had brought herself within the provisions of section 76 of the Law of Succession Act and that the Grant dated 14th December 2021 was defective. 4. In the end, the Grant dated 14th December 2021 and confirmed on 20th September 2022 is hereby revoked. Each party to bear their own costs. **Ruling delivered, dated and signed at Bomet this 22nd day of July, 2026.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Ruling delivered in the presence of:** **Siele/Zachary (Court Assistants)** **Korir for the Respondent** **Matere for the Applicant**