[1] Before Court is Summons dated 10 th June 2026 brought by the objector, Zaidun Jerobon alias Zaitun Ngala , under Sections 6 and 7 of the Civil Procedure Act and Rule 59(5) and (6) of Probate and Administration Rules. The summons seeks the following orders:
[a] Spent.
[b] That petition is fatally defective and cannot stand in law as it contravenes Section 6 and 7 of the Civil Procedure Act, on sub judice and res judicata, respectively.
[c] That the Petition be struck out with costs.
[2] The Summons is supported by grounds on the face of it and the objector’s affidavit sworn on 10 th June 2026. In summary the objector averred that she is the sister to the late John Kiptoo Cullen alias John Kiptoo Ngala who passed away on 13 th January 2010. That at the time of the deceased's death, he was unmarried and left no surviving spouse or children. She further averred that their mother predeceased the deceased, leaving her as the only surviving beneficiary to his estate.
[3] The objector further deposed that following the demise of her brother, the deceased, she petitioned the High Court at Eldoret for Grant of Letters of Administration Intestate on 13 th October 2010; and that her Petition was allowed and Grant issued on 3 rd June 2011 which was confirmed on 23 rd February 2012. The objector annexed copies thereof to her Supporting Affidavit. The objector further pointed out that, on 8 th May 2024, the petitioner filed Summons for Revocation of the Grant issued to her on 3 rd June 2011 and confirmed on 23 rd February 2012, alleging that he is a son of the deceased and has a right to be included as a beneficiary of his estate.
[4] The objector explained that she opposed the petitioner’s application for revocation of grant; that it thereafter proceeded for hearing by viva voce evidence, and is currently pending judgment before Eldoret High Court. She attached a screen shot of Court Tracking System to the Supporting Affidavit to demonstrate that the petitioner’s application for revocation of grant in Eldoret Succession Cause No. 221 of 2010 is pending determination. She averred that having participated in that earlier suit it was not permissible for the petitioner to file a fresh Petition for Grant of Letters of Administration Intestate over the same estate as he did herein.
[5] The objector also averred that the petitioner is guilty of material non-disclosure and has approached this Court in bad faith by failing to disclose that he had already filed an application for revocation of grant in Eldoret High Court Family Division Succession Cause No. 221 of 2010 .
[6] Although the application was duly served on the petitioner, no response of any kind was filed by him. As the application raised a valid jurisdictional issue, which is an issue that can also be taken by the Court suo motu, the matter proceeded to hearing ex parte and was argued orally by counsel for the objector. She reiterated the averments set out in the Supporting Affidavit and reiterated that the petitioner’s application for revocation of grant filed in Eldoret High Court Succession Cause No. 221 of 2010 is awaiting judgment which was to be delivered in April 2026 but for the transfer of Hon. Nyakundi, J. who was handling the matter. Thus, the objector urged that the Petition be struck out.
[7] In the premises, the only issues for determination are whether the doctrines of res judicata and sub judice are applicable to the facts set out herein.
A. On res sub judice :
[8] It is a peremptory requirement of Section 6 of the Civil Procedure Rules that:
"No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted proceeding between the same parties, or between 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 relief claimed."
[9] The underlying rationale for this provision is not difficult to discern. It is to prevent courts of concurrent jurisdiction from simultaneously hearing two parallel suits in respect of the same subject matter. Hence, in Kenya Airports Authority v Anthony Mutumbi Wachira [2015] eKLR, the Court of Appeal held:
"We think, as a matter of policy of the law that finds expression in Section 6 of the Civil Procedure Act for instance that no court should proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties where such suit or proceeding is pending in the same or any other court having jurisdiction to grant the relief claimed. The sound object behind that policy is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits or proceedings in respect of the same subject matter in issue."
[10] The objector demonstrated that there is in place another suit filed before the instant one in respect of the estate of the deceased. She attached several documents in proof of that assertion, including copies of the Grant of Letters of Administration Intestate issued to her dated 3 rd June 2011, Certificate of Confirmation of Grant dated 23 rd February 2012 and a copy of the Summons for Revocation of Grant filed in Eldoret High Court Succession Cause No. 221 of 2010. The objector also sufficiently demonstrated that the petitioner’s application is pending determination before the High Court at Eldoret.
[11] It is notable that, in his application for Revocation of Grant, the petitioner prayed, at paragraph 6 thereof, that he be appointed as the administrator of the estate of the deceased in place of the objector. It is therefore plain that the matters in issue herein are the same matters in issue in Eldoret High Court Succession Cause No. 221 of 2010. It is therefore my finding that the instant application is sub judice.
B. On Res Judicata:
[12] Section 7 of the Civil Procedure Act is explicit 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.
[13] It is therefore instructive to restate the purpose of the doctrine of res judicata . In Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR it was held that:
“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
[14] Accordingly, that the doctrine is not a mere procedural technicality was made clear in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR by the Supreme as follows:
It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.(emphasis added)
[15] It is my finding therefore that instant suit is res judicata and that the doctrine of res judicata is applicable to succession matters. Indeed, Section 47 of the Law of Succession Act 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…
[16] In the same vein, Rule 73 of the Probate and Administration Rules stipulates that:
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
[17] I therefore find succor in R e Estate of Fridah Wairimu Wanguhu (Deceased) (Succession Cause 768 of 2012) [2026] KEHC 342 (KLR) (23 January 2026) (Ruling ) in which the court held as follows:
19. The doctrine of res judicata being a fundament principle of law prevents abuse of the Court process, allowing such an argument from the Protestor would open a door parties will re-litigating issues before Succession Courts cloaking such attempts under Rule 63 in the guise of succession litigation. That would undermine the finality of judicial decisions.
20. Such arguments if allowed defeat the purpose of orderly administration of estates of deceased persons. Succession proceedings are designed to achieve finality in distribution.
21. There is no shortage of authorities where Courts have confirmed that the doctrine of res judicata applies with full force to succession matters. See In re Estate of Daudi Gachonde (Deceased) [2024] KEHC 8145
(KLR).
22. I find that this Court, as a Succession Court is bound by the doctrine of res judicata and cannot purport determine issues that have already been litigated by a competed Court to finality.
[18] Res judicata not only bars the issues that have already been litigated but those which ought to have been raised earlier. Accordingly, in re Estate of Nyaga Mamithi (Deceased) (Succession Cause 691 of 2012) [2026] KEHC 1352 (KLR) (9 February 2026) (Ruling) the point was made as follows:
“In essence, therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378, observed thus:
“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
[19] The documents availed reveal that Grant of Letters of Administration Intestate have been issued and confirmed by a court of competent jurisdiction. In the circumstances the issue of issuance of Grant and confirmation thereof is res judicata to the extent that a Grant has already been made by a court of competent jurisdiction,
[20] In the premises, I find merit in the Summons dated 10 th June 2026. The same is hereby allowed and orders granted as follows:
[a] That this Petition be and is hereby struck out for being sub judice.
[b] The Grant of Letters of Administration Intestate issued herein to the petitioner on the 7 th March 2025 is hereby nullified on account of the doctrine of res judicata.
[c] Each party to bear own costs of the Petition.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KAPSABET THIS 28 TH DAY OF JULY 2026
[a] Spent.
[b] That petition is fatally defective and cannot stand in law as it contravenes Section 6 and 7 of the Civil Procedure Act, on sub judice and res judicata, respectively.
[c] That the Petition be struck out with costs.
[2] The Summons is supported by grounds on the face of it and the objector’s affidavit sworn on 10 th June 2026. In summary the objector averred that she is the sister to the late John Kiptoo Cullen alias John Kiptoo Ngala who passed away on 13 th January 2010. That at the time of the deceased's death, he was unmarried and left no surviving spouse or children. She further averred that their mother predeceased the deceased, leaving her as the only surviving beneficiary to his estate.
[3] The objector further deposed that following the demise of her brother, the deceased, she petitioned the High Court at Eldoret for Grant of Letters of Administration Intestate on 13 th October 2010; and that her Petition was allowed and Grant issued on 3 rd June 2011 which was confirmed on 23 rd February 2012. The objector annexed copies thereof to her Supporting Affidavit. The objector further pointed out that, on 8 th May 2024, the petitioner filed Summons for Revocation of the Grant issued to her on 3 rd June 2011 and confirmed on 23 rd February 2012, alleging that he is a son of the deceased and has a right to be included as a beneficiary of his estate.
[4] The objector explained that she opposed the petitioner’s application for revocation of grant; that it thereafter proceeded for hearing by viva voce evidence, and is currently pending judgment before Eldoret High Court. She attached a screen shot of Court Tracking System to the Supporting Affidavit to demonstrate that the petitioner’s application for revocation of grant in Eldoret Succession Cause No. 221 of 2010 is pending determination. She averred that having participated in that earlier suit it was not permissible for the petitioner to file a fresh Petition for Grant of Letters of Administration Intestate over the same estate as he did herein.
[5] The objector also averred that the petitioner is guilty of material non-disclosure and has approached this Court in bad faith by failing to disclose that he had already filed an application for revocation of grant in Eldoret High Court Family Division Succession Cause No. 221 of 2010 .
[6] Although the application was duly served on the petitioner, no response of any kind was filed by him. As the application raised a valid jurisdictional issue, which is an issue that can also be taken by the Court suo motu, the matter proceeded to hearing ex parte and was argued orally by counsel for the objector. She reiterated the averments set out in the Supporting Affidavit and reiterated that the petitioner’s application for revocation of grant filed in Eldoret High Court Succession Cause No. 221 of 2010 is awaiting judgment which was to be delivered in April 2026 but for the transfer of Hon. Nyakundi, J. who was handling the matter. Thus, the objector urged that the Petition be struck out.
[7] In the premises, the only issues for determination are whether the doctrines of res judicata and sub judice are applicable to the facts set out herein.
A. On res sub judice :
[8] It is a peremptory requirement of Section 6 of the Civil Procedure Rules that:
"No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted proceeding between the same parties, or between 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 relief claimed."
[9] The underlying rationale for this provision is not difficult to discern. It is to prevent courts of concurrent jurisdiction from simultaneously hearing two parallel suits in respect of the same subject matter. Hence, in Kenya Airports Authority v Anthony Mutumbi Wachira [2015] eKLR, the Court of Appeal held:
"We think, as a matter of policy of the law that finds expression in Section 6 of the Civil Procedure Act for instance that no court should proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties where such suit or proceeding is pending in the same or any other court having jurisdiction to grant the relief claimed. The sound object behind that policy is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits or proceedings in respect of the same subject matter in issue."
[10] The objector demonstrated that there is in place another suit filed before the instant one in respect of the estate of the deceased. She attached several documents in proof of that assertion, including copies of the Grant of Letters of Administration Intestate issued to her dated 3 rd June 2011, Certificate of Confirmation of Grant dated 23 rd February 2012 and a copy of the Summons for Revocation of Grant filed in Eldoret High Court Succession Cause No. 221 of 2010. The objector also sufficiently demonstrated that the petitioner’s application is pending determination before the High Court at Eldoret.
[11] It is notable that, in his application for Revocation of Grant, the petitioner prayed, at paragraph 6 thereof, that he be appointed as the administrator of the estate of the deceased in place of the objector. It is therefore plain that the matters in issue herein are the same matters in issue in Eldoret High Court Succession Cause No. 221 of 2010. It is therefore my finding that the instant application is sub judice.
B. On Res Judicata:
[12] Section 7 of the Civil Procedure Act is explicit 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.
[13] It is therefore instructive to restate the purpose of the doctrine of res judicata . In Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR it was held that:
“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
[14] Accordingly, that the doctrine is not a mere procedural technicality was made clear in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR by the Supreme as follows:
It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.(emphasis added)
[15] It is my finding therefore that instant suit is res judicata and that the doctrine of res judicata is applicable to succession matters. Indeed, Section 47 of the Law of Succession Act 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…
[16] In the same vein, Rule 73 of the Probate and Administration Rules stipulates that:
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
[17] I therefore find succor in R e Estate of Fridah Wairimu Wanguhu (Deceased) (Succession Cause 768 of 2012) [2026] KEHC 342 (KLR) (23 January 2026) (Ruling ) in which the court held as follows:
19. The doctrine of res judicata being a fundament principle of law prevents abuse of the Court process, allowing such an argument from the Protestor would open a door parties will re-litigating issues before Succession Courts cloaking such attempts under Rule 63 in the guise of succession litigation. That would undermine the finality of judicial decisions.
20. Such arguments if allowed defeat the purpose of orderly administration of estates of deceased persons. Succession proceedings are designed to achieve finality in distribution.
21. There is no shortage of authorities where Courts have confirmed that the doctrine of res judicata applies with full force to succession matters. See In re Estate of Daudi Gachonde (Deceased) [2024] KEHC 8145
(KLR).
22. I find that this Court, as a Succession Court is bound by the doctrine of res judicata and cannot purport determine issues that have already been litigated by a competed Court to finality.
[18] Res judicata not only bars the issues that have already been litigated but those which ought to have been raised earlier. Accordingly, in re Estate of Nyaga Mamithi (Deceased) (Succession Cause 691 of 2012) [2026] KEHC 1352 (KLR) (9 February 2026) (Ruling) the point was made as follows:
“In essence, therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378, observed thus:
“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
[19] The documents availed reveal that Grant of Letters of Administration Intestate have been issued and confirmed by a court of competent jurisdiction. In the circumstances the issue of issuance of Grant and confirmation thereof is res judicata to the extent that a Grant has already been made by a court of competent jurisdiction,
[20] In the premises, I find merit in the Summons dated 10 th June 2026. The same is hereby allowed and orders granted as follows:
[a] That this Petition be and is hereby struck out for being sub judice.
[b] The Grant of Letters of Administration Intestate issued herein to the petitioner on the 7 th March 2025 is hereby nullified on account of the doctrine of res judicata.
[c] Each party to bear own costs of the Petition.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KAPSABET THIS 28 TH DAY OF JULY 2026