REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 11 OF 2003
ERIC WAMOTO KHARAKHARA………………….………….PETITIONER/RESPONDENT
VERSUS
JACOB WAFULA MUSAMIA
OBADIA SIMIYU MUSAMIA ……………………………..OBJECTOR/APPLICANTS
RULING
1. Vide a chamber summons dated 18th March 2025, the Petitioner herein one Eric Wamoto Kharakhara craved that the letters of administration issued to him herein on 6th November 2003 be confirmed.
2. The objectors herein, Jacob Wafula Musamia and Obadiah Simiyu Musamia filed an affidavit of protest sworn by Jacob Wafula Musamia on 10th May 2025.
3. The Petitioner reacted to the affidavit of protest by filing a preliminary objection dated 11.8.2025 which averred as follows:-
i. THAT the protest is bad in law, defective, and ought to be struck out as the same issue raised is similar, to the issues raised in application for revocation of grant which the court has rendered a decision on the same by dismissal and hence the same is incompetent, res judicata, non-starter, vexatious and abuse of the due process of the court.
4. The preliminary objection was canvassed by way of written submissions. This court has duly considered the rival submissions of parties and the sole issue for determination is whether the affidavit of protest raises issues that have already determined by this court.
5. I have duly considered the ruling of my brother Justice Kemei delivered on 30th September 2024 and specifically paragraph14 thereof that states as follows:
“………Further, it is noted that the grant herein is yet to be confirmed and as such the objector still have an opportunity to file a protest if any against the proposed mode of distribution by the petitioner.”
6. Whereas it is factually correct that the objectors summons for revocation of grant dated 21.4.2021, was dismissed, the objector’s protest to the mode of distribution of the estate of the deceased as proposed by the petitioner in his chamber summons dated 18th March 2025 is a matter that has not been heard and determined as the same is therefore not res judicata.
7. The operative section 7 of the Civil Procedure Act CAP 21 Laws of Kenya provides 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.”
8. In light of the above finding, I do hereby over rule the petitioner’s preliminary objection dated 11.8.2025.
9. Given that this is a succession matter each party shall bear it’s own costs.
Delivered, signed, and dated at Bungoma this 18th day of December, 2025.
MWANAISHA S. SHARIFF
JUDGE
In the presence of :-
Parties Absent
Court Assistant- Peter Machoni
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 11 OF 2003
ERIC WAMOTO KHARAKHARA………………….………….PETITIONER/RESPONDENT
VERSUS
JACOB WAFULA MUSAMIA
OBADIA SIMIYU MUSAMIA ……………………………..OBJECTOR/APPLICANTS
RULING
1. Vide a chamber summons dated 18th March 2025, the Petitioner herein one Eric Wamoto Kharakhara craved that the letters of administration issued to him herein on 6th November 2003 be confirmed.
2. The objectors herein, Jacob Wafula Musamia and Obadiah Simiyu Musamia filed an affidavit of protest sworn by Jacob Wafula Musamia on 10th May 2025.
3. The Petitioner reacted to the affidavit of protest by filing a preliminary objection dated 11.8.2025 which averred as follows:-
i. THAT the protest is bad in law, defective, and ought to be struck out as the same issue raised is similar, to the issues raised in application for revocation of grant which the court has rendered a decision on the same by dismissal and hence the same is incompetent, res judicata, non-starter, vexatious and abuse of the due process of the court.
4. The preliminary objection was canvassed by way of written submissions. This court has duly considered the rival submissions of parties and the sole issue for determination is whether the affidavit of protest raises issues that have already determined by this court.
5. I have duly considered the ruling of my brother Justice Kemei delivered on 30th September 2024 and specifically paragraph14 thereof that states as follows:
“………Further, it is noted that the grant herein is yet to be confirmed and as such the objector still have an opportunity to file a protest if any against the proposed mode of distribution by the petitioner.”
6. Whereas it is factually correct that the objectors summons for revocation of grant dated 21.4.2021, was dismissed, the objector’s protest to the mode of distribution of the estate of the deceased as proposed by the petitioner in his chamber summons dated 18th March 2025 is a matter that has not been heard and determined as the same is therefore not res judicata.
7. The operative section 7 of the Civil Procedure Act CAP 21 Laws of Kenya provides 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.”
8. In light of the above finding, I do hereby over rule the petitioner’s preliminary objection dated 11.8.2025.
9. Given that this is a succession matter each party shall bear it’s own costs.
Delivered, signed, and dated at Bungoma this 18th day of December, 2025.
MWANAISHA S. SHARIFF
JUDGE
In the presence of :-
Parties Absent
Court Assistant- Peter Machoni