'REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
FAMILY DIVISION
MISC. CIVIL APPLICATION NO. E016 OF 2025
IN THE MATTER OF THE ESTATE OF KILLIAN ANSELM MWOLOI (DECEASED)
AND
IN THE MATTER OF APPLICATION FOR BURIAL ORDERS
BETWEEN
MARGARET HALIMA MWOLOI…….…… APPLLICANT/RESPONDENT
-VERSUS-
JULIET KAMBUA KITONYO……………....1ST RESPONDENT/APPLICANT
JOSEPH MBALU MUTAVA…………..…....2ND RESPONDENT/APPLICANT
KIBWEZI FUNERAL HOME…………………………….…..3RD RESPONDENT
RULING
Introduction
1. There are two applications for determination. The application dated 10/09/2025 was filed by Margaret Halima, seeking inter alia for an injunction to restrain Juliet Kambua, Joseph Mutava and their agents from interfering with the body of the late Killian Anselm Mwoloi or proceeding with any burial arrangements. Margaret deponed that she is the only legal wife of the deceased.
2. Juliet Kambua and Joseph Mutava reacted to the said application through an application dated 23/09/2025 which seeks to have the former struck out for being res judicata.
Backgroud
3. Joseph Mutava was the Applicant in Makindu CM’s Succession Misc Application No. E071 of 2025 where he deponed that he is an executor of the deceased’s last will and testament and sought to enforce the deceased’s wishes as set out in the will. He deponed that the deceased had clearly expressed his wishes, in clause 5 of the will, to be buried at his homestead in Matundani, Kangeso, Kibwezi but Margaret objected to the same and insisted that the deceased be buried at her home in Kyanginywa.
4. The trial court delivered a ruling on 19/09/2025 and issued the following orders;
a) That a declaration is hereby made that the late Killian Mwoloi, who died on 11th August 2025, died testate having prepared and executed a last will and testament dated 8th March 2025 which is uncontested.
b) That a declaration is hereby made that the will names the Applicant as the executor of the will, which appointment bestows upon the executor legal authority to enforce and implement the terms of the will.
c) That a declaration is hereby made that the late Killian Anselm Mwoloi be buried at his homestead in Matunduni, Kangeso, Kibwezi, in accordance with clause 5 of his duly executed will and that such burial be undertaken and completed within 14 days of the issuance of this court orders.
d) That an order is hereby made restraining Ms. Margaret Njeri Mwoloi, her family members, friends, agents, servants or any other person acting under her instructions from disputing the burial site, blocking, disrupting or in any way interfering with the funeral and burial arrangements of the late Killian Anselm Mwoloi at Kangeso, Kibwezi.
e) That the Officer Commanding Station (OCS) Kibwezi do supervise the funeral arrangements and burial of the deceased at Kangeso, Kibwezi and ensure that peace, order and security are maintained during the burial.
The Application dated 23/09/2025
5. The applicant sought the following orders;
a) That this honorable court be pleased to strike out the Applicant’s application dated 10th September 2025 for being res judicata, frivolous, vexatious and an abuse of the process of this honorable court, the issues therein having been conclusively determined in Makindu CM Misc Application No. E071 of 2025.
b) That this Honourable Court do find and hold that the present application is filed in contravention of Sections 6 and 7 of the Civil Procedure Act, as the matter is already determined, and the Applicant as well as the parties were fully aware of the orders issued on 19th September 2025.
c) That this Honourable Court do reaffirm and direct strict compliance with the orders issued on 19th September 2025 by Hon. O. A. Nyandusi, RM, in Makindu CM Misc. Application No. E071 of 2025.
d) That pending the hearing and determination of this application, the Applicant/Respondent herein do bear the costs of preservation of the body of the deceased.
e) That costs of this application be awarded to the Respondent.
6. The application is supported by the grounds on its face and the affidavit of Joseph Mbalu Mutava sworn on the same day.
7. He deponed that he is well versed with the matters in issue hence competent to swear this affidavit and is also the executor of the will of the late Killian Anselm Mwoloi made on 8th March 2025. A copy of the will is exhibited as JMM1. That, following the death of the late Mwoloi, he duly convened the families of his two widows Margaret Halima Mwoloi and Juliet Kambua Kitonyo and read the will to both of them virtually on 19/08/2025 and thereafter physically at Kibwezi on the 29/08/2025. A screen shot of the video conference is exhibited as JMM2.
8. That, inspite of Clause 5 of the will expressly indicating the deceased’s preferred place of burial, being Matundani, Kangesu Kibwezi, the Applicant herein refused to heed and demanded to bury the deceased in her home in Kyanginywa. That in order to implement the terms of the will in his capacity as executor, he filed an application at Makindu Principal Magistrates Court, on 05/09/2025, being MCSUCCMISC/E071/2025 Joseph Mbalu Mutava -vs- Margaret Njeri Mwoloi and Juliet Kambua Kitonyo (interested party) – ‘Makindu matter’. A copy of the application is exhibited as JMM3.
9. He deponed that on 08/09/2025, the court directed that the application be served upon the Respondents for inter partes hearing and it was duly served on 09/09/2025. A copy of Affidavit of Service is exhibited as JMM4. That, despite service of the pleadings, the Respondent did not file a reply to the application and subsequently the application was heard and determined on 19/09/ 2025 and the court granted the orders sought in the application in their entirety. A copy of the court order is exhibited as JMM5. That, it is therefore clear that the application filed in Makindu Law Courts was earlier in time and involved the same parties and the same subject matter as the present application hence rendering the present application res judicata.
10. He deponed that the Applicant, being fully aware of the subsisting proceedings and orders of the Makindu Principal Magistrates Court, has now resorted to filing the present application before this Honourable Court as a calculated and clever ploy to circumvent and undermine the lawful orders issued therein, in the hope of securing a more favourable forum, which amounts to forum shopping and a blatant abuse of the court process. That, the present application is an abuse of the court process and ought to be struck out in limine.
11. He deponed that as executor of the estate, he continues to bear responsibility for safeguarding the estate’s assets and meeting necessary expenses and the ongoing disputes are causing the estate to incur unnecessary costs and delays in administration.
12. The application was opposed through the Replying Affidavit of Margaret Halima sworn on 29/09/2025.
13. She deponed that according to advice from her Advocates which she believes to be true, the Application dated 23/09/2025 is fatally defective and an abuse of court process and time and should be struck out. That, on 11/09/2025, she received a phone call from her brother-in-law, at around 11am, while in Nairobi having a meeting with her Advocates on record. The brother-in-law informed her that some documents had been dropped at her home in Uthithuni Village by two unknown individuals who only identified themselves as Musau of telephone number 0758058708 and the other was Samson.
14. That, after returning home, she perused the documents and found that they had neither a case number nor a stamp and upon further consultation and review by her Advocates on record, he confirmed that the same had no case number and stamp as already admitted in their Affidavit of service marked as “JMM-4” and thus he was not in a position to verify the authenticity of the documents in the e-filing portal and as such, she was to ignore the documents until served with a proper order and pleadings. A copy of the bundle of documents delivered to her home is exhibited as MHM-01.
15. That, she instructed her Advocates on record to file the Application dated 10/09/2025 and the same was filed under urgency on 11/09/2025 and directions issued on 13/09/2025. A copy of the Court’s directions issued is exhibited as MHM-02.
16. That, on 15/09/2025, her Advocates served the pleadings and court order of 13/09/2025 upon the Respondents through WhatsApp but it was only the 3rd Respondent herein who acknowledged receipt and indicated that the matter indeed related to their mortuary. That, an Affidavit of service dated 15/09/2025 was filed.
17. That, on 17/09/2025, her Advocates on record effected physical service of the pleadings and Court order upon the 2nd Respondent at their offices located in Bankers Court, Green Lane (behind Daystar University) and they acknowledged receipt by appending their stamp on the documents. An Affidavit of service dated 17/09/2025 was filed.
18. She deponed that according to advice from her Advocates which she believed to be true, by the time the 1st and 2nd Respondents were granted their order on 19/09/2025, they were already aware of this Honorable Court’s Orders granted on 13/09/2025. That, by 19/09/2025, when Makindu CM Misc Application No. E071 of 2025 was coming for directions before the Magistrate Court, the 1st and 2nd Respondents herein were aware that she had appointed the firm of JN & P LAW ADVOCATES LLP to represent her hence they ought to have served them with a Mention Notice for the upcoming matter but they deliberately failed to do so.
19. She deponed that according to advice from her Advocates which she believed to be true, the 1st Respondent is a Senior Counsel and former High Court Judge and thus he had a professional obligation as an officer of the Court to bring to the attention of the Makindu court, the Orders issued on 13th September and further request the Court to stay the proceedings pending the determination of the Application filed herein as the High Court is a superior court and all its orders supersede those of the Chief Magistrate Court.
20. She deponed that according to advice from her Advocates which she believed to be true, the Orders granted in Makindu CM Misc Application No. E071 of 2025, were obtained fraudulently and through concealment of material facts and the same would not have been granted if the Magistrate Court was made aware of the Orders issued by this Honourable Court on 13/09/ 2025.
21. She deponed that the orders of 19/09/2025 in Makindu CM Misc Application No. E071 of 2025 were null and void and cannot be used as a basis of the Application dated 23/09/2025 as the same were obtained when orders of the High Court existed and thus the principle of res judicata cannot be invoked herein.
22. The application dated 23/09/2025 has priority as it has potential to be dispositive. The same was canvassed through written submissions but I didn’t see any submissions from Margaret Halima with respect to the application.
Submissions by the Applicants (Juliet Kambua & Joseph Mutava)
23. It was submitted that the Originating Summons (O.S) dated 10/09/2025 offends the doctrine of sub judice as codified under section 6 of the Civil Procedure Act, and is further barred by the doctrine of res judicata under section 7 of the same Act. That, instead of filing a response to the Makindu matter, Margaret Halima chose to file the O.S in this court while fully aware that there was a live matter before the Makindu court involving the same parties, the same subject matter and the same reliefs. That, this conduct is a textbook example of forum shopping, which our courts have consistently frowned upon. Reliance was placed on Thiba Min. Hydro Co. Ltd -vs- Josphat Karu Ndwiga [2013] eKLR where the Court emphasized that pursuing parallel proceedings over the same matter creates a risk of conflicting decisions and an abuse of the judicial process.
24. It was submitted that on 19/09/2025, the Makindu court delivered a ruling in which it upheld the validity of the Will, affirmed Clause 5 and directed that the deceased be buried at Matundani, Kangeso, Kibwezi. That, the issues raised herein to wit, burial place, validity of the Will, and rights of the parties were conclusively determined by a court of competent jurisdiction. Reliance was placed on E.T -vs- Attorney General & Anor [2012] eKLR where the Court of Appeal stated;
“The doctrine of res judicata is meant to bar parties from litigating on the same issues again and again, and also to protect the court’s precious time from being wasted. Litigation must come to an end.”
25. It was submitted that the Makindu Court affirmed the validity of the will and the burial directions therein and unless set aside, that ruling binds all parties and must be respected. It was contended that the application dated 23/09/2025 is not speculative or misplaced but is a necessary procedural step to ensure that the deceased is laid to rest in accordance with his lawful wishes and the binding orders already issued. That, to deny this application would not only prolong unnecessary anguish but would also erode public confidence in the sanctity of court orders and finality of litigation.
26. I have carefully considered the applications, responses and submissions, and the issue for determination is whether the O.S dated 10/09/2015 is barred by the doctrines of sub-judice and res judicata based on the Makindu matter.
Analysis
27. Section 6 of the Civil Procedure Act provides 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 suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
28. The plain reading of the above section connotes the existence of multiple similar suits involving the same subject matter and same parties but filed in different forums of competent jurisdiction. That is not the case here as the Makindu matter is no longer active before that court pursuant to the ruling delivered on 19/09/2025.
29. As for 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 … and has been heard and finally decided by such court.”
30. Jurisprudence from our courts: John Florence Maritime Services Limited & another -vs- Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR) has now distilled the essential ingredients of the doctrine to be;
a. Was there previous litigation in which identical claims were raised or in which identical claims could have been raised?
b. Are the parties in the present suit the same as those who litigated the original claim?
c. Did the Court which determined the original claim have jurisdiction to determine the claim?
d. Did the original action receive a final judgment on the merits?
31. The application before the Makindu court was basically about the place of burial where it was alleged that the deceased had left a will in which he expressly stated that he wished to buried at the home of Juliet Kambua Kitonyo. The O.S before this court seeks to have the deceased buried at the home of Margaret Halima which, allegedly, is his matrimonial home. The existence of the deceased’s will is also hotly contested in the O.S. Evidently therefore, the issues raised in both proceedings are identical.
32. The parties in both proceedings are also similar save for the 3rd Respondent (Kibwezi Funeral Home) which was not a party in the Makindu matter. Further, it is not in dispute that the Makindu court had jurisdiction to determine the claim.
33. As to whether the Makindu matter received a final judgment on the merits, it is a fact that the matter proceeded unopposed when Margaret Halima did not participate. On one hand, Margaret Halima deponed that she was served with court papers without a case number hence impossible for her Advocate to verify their authenticity on the Judiciary e-filing portal. On the other hand, Juliet Kambua and Joseph Mutava insisted that she was served with proper papers but she willingly chose not to participate. That back and forth notwithstanding, it is a fact that on 13/09/2025, this court had issued directions pursuant to the O.S where it allowed prayer (ii) therein to wit;
“That pending the hearing and determination of this application inter partes, this Honorable court be pleased to issue a temporary injunction restraining the 1st and 2nd Respondents, their agents, servants or any person acting on their instructions from interfering with the body of the deceased Killian Anselm Mwoloi or proceedings with any burial arrangements contrary to the wishes of the Applicant and the immediate family.”
34. The Affidavit of Service dated 17/09/2025 and filed by the Advocate of Margaret Halima shows that the 2nd Respondent was served with the directions of this court on 17/09/2015. Indeed, the return copy of the directions has a stamp affixed on it showing that the same was received at the office of the 2nd Respondent at 8.48am on the said date. Considering that the 2nd Respondent (Joseph Mutava) was the applicant in the Makindu court, it is evident that by the time he appeared in the Makindu court on 19/09/2025, he was well aware of the directions of this court
35. The 2nd Respondent, being an officer of the court as had a duty to inform the learned magistrate about the proceedings in the superior court otherwise as it stands now, the ruling of the Makindu court contradicts the directions of this court and having been made after the said directions, it cannot stand as a to the O.S in this court.
36. Be that as it may, the Makindu matter did not receive a final judgment on merits in that, the alleged will is hotly contested and it was never propounded in order to determine its validity or lack thereof. Further, the marital statuses of Margaret Halima and Juliet Kambua to the deceased have not been determined to their logical conclusion. In the persuasive case of M W K -vs- A M W [2016] eKLR, which I agree with, the court (Joel Ngugi J) posited that;
“Both the policy rationale as well as our case law lean in the direction that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to suits that are dismissed on preliminary technical points. Res Judicata bars a future suit only when the case is resolved based on the facts and evidence of the case or when the final judgment concerned the actual facts giving rise to the claim. For example, dismissal of a case for lack of subject matter or because the service was improper or even for want of prosecution does not give rise to judgments on the merits and therefore do not trigger the plea of res judicata.”
37. The upshot is that the O.S dated 10/09/2025 is not res judicata hence the application dated 23/09/2025 was overtaken by the event of the directions of this court in the O.S as will be seen below.
The Originating Summons dated 10/09/2025
38. The O.S seeks the determination of the following questions;
i. Whether this Honourable Court should issue an injunction to restrain the 1st Respondent from intermeddling with the body and burial arrangements of the deceased, Killian Anslem Mwoloi.
ii. Whether the Applicant, as the lawful widow married under the The African Christian Marriage Act (now repealed) has the primary right to oversee the funeral and burial arrangements of her deceased husband.
iii. Whether the deceased should be buried at his matrimonial home in Plot no. 1128 Ngandani Settlement Scheme, in Uthithuni Village, Ngandani Location in Kibwezi District with the applicant or at his ancestral home in Mbuvuni Village, Mwonjani Sub-Location, Mwonjani Location in Mbitini, Makueni County, for a dignified and peaceful burial.
iv. Who should bear the costs of this Application?
39. Further, the O.S seeks the following orders;
i. Spent.
ii. Spent.
iii. That pending the hearing and determination of the underlying Succession Cause, this Honourable Court be pleased to issue an injunction restraining the 1st and 2nd Respondents, their agents, servants, or any person acting on their instructions from interfering with the body of the deceased or the burial arrangements.
iv. That this Honourable Court be pleased to appoint the Applicant as the sole person mandated to oversee and conduct the funeral and burial arrangements of the deceased.
v. That this Honourable Court be pleased to order that the deceased be buried at his matrimonial home in Plot no. 1128 Ngandani Settelement Scheme, in Uthithuni Village, Ngandani Location in Kibwezi District with the applicant or at his ancestral home in Mbuvuni Village, Mwonjani Sub-Location, Mwonjani Location in Mbitini, Makueni County, for a dignified and peaceful burial.
vi. That the costs of this application be provided for.
40. The O.S is supported by the grounds on its face and the affidavit of Margaret Halima sworn on the same day and further affidavit sworn on 29/09/2015. She deponed that she is the lawful widow of the late Killian Anselm Mwoloi (the deceased) who died on 11/08/2025. That, she was lawfully married to the deceased under The African Christian Marriage Act (now repealed) on 20/04/1974 and the marriage was blessed with Five (5) children. A copy of the marriage certificate is exhibited as MHM-01.
41. She deponed that they established their matrimonial home in Plot No. 1128 Ngandani Settlement Scheme, in Uthithuni Village, Ngandani Location, in Kibwezi District in Makueni County where they resided together as a family until the time of his demise. A letter from the area Assistant Chief is exhibited as MHM-02. That, the deceased was diagnosed with terminal illness in December, 2024 and after prolonged and painful illness, he succumbed to the illness on 11/08/2025 after which his remains were transferred to Kibwezi Funeral Home (3rd Respondent) where they have been kept pending funeral preparations.
42. She deponed that her family was busy planning for Deceased’s funeral when the 1st Respondent herein emerged and purported to have been married to the deceased under Kamba customary law and claimed that she was the deceased’s legitimate wife and therefore responsible for the funeral and burial arrangement. That, any such marriage is null and void as it was contracted during the subsistence of a valid marriage. That, the 1st Respondent is therefore a stranger to the estate of the deceased and has no locus standi whatsoever with respect to the funeral arrangement, burial and determination of the burial place.
43. She deponed that following the death of her husband, the 1st Respondent informed them that prior to his demise, the deceased had left a written Will which was under the custody of the 2nd Respondent. That, thereafter, together with her Children and other family elders they had a meeting with the 2nd Respondent’s at the East View Hotel in Kibwezi which was also attended by the 1st Respondent wherein the 2nd Respondent produced a Will which is highly contested and which the 1st and 2nd Respondents are now using to claim a right to bury the deceased at the 1st Respondent’s home in Matundani Village, Kangeso, in Kibwezi District.
44. She deponed that they have perused the Will purported to have been written and signed by the deceased and a cursory look of the same will establish that it is a forgery in that, it is not signed by the deceased with his own handwriting but instead it purports that the deceased executed the same by placing his thumb print yet the deceased was a qualified Clinical Officer who, throughout his career, worked at both the AMREF and Action Aid International before he opened his Clinic in Kibwezi town. A copy of the purported will is exhibited as MHM -03.
45. She deponed that the intended burial of her husband at the 1st Respondent''s home is abhorrent to their family culture and traditions, is opposed by their children, the entire extended family and their Clan and is a recipe for chaos and breach of peace. A copy of a letter from their children is exhibited as MHM -04.
46. She deponed that as the lawful widow, it is her right and duty to give her husband a dignified burial at their matrimonial home in Plot No. 1128 Ngandani Settlement Scheme, in Uthithuni Village, Ngandani Location, in Kibwezi District or, in the alternative, at his ancestral home in Mbuvuni Village, Mwonjani Sub-Location, Mwonjani Location, in Mbitini, Makueni County where his parents and ancestors are buried. That, the actions of the 1st and 2nd Respondents are causing her and her children immense mental anguish and are desecrating the memory of her late husband.
47. She deponed that this matter is extremely urgent as the 1st and 2nd Respondents are making rapid plans for the burial and may move the body from the mortuary at any time, thereby rendering this application nugatory. A letter from the 2nd Respondent issuing an ultimatum is exhibited as MHM-05. That, it is in the best interest of justice that this Honourable Court grants the orders sought to ensure a peaceful, dignified, and proper burial and to preserve the sanctity of her lawful marriage.
48. The O.S is opposed through the Replying Affidavit of Juliet Kambua sworn on 26/09/2025 where she deponed that she began cohabiting with the deceased, as husband and wife, in the year 1996 and from that time until his death on 11/08/2025, they lived together continuously as man and wife. That, out of the said union, they were blessed with two children namely Michael Muamba, born on 16/02/1997, and Esther Kalekye born on 09/11/1999.
49. She deponed that the deceased acknowledged both children as his own, and their birth certificates clearly bear his name as their father. Copies of their birth certificates are exhibited as JKK1a and “JKK1b. That, in further affirmation of their marital relationship, the deceased swore an Affidavit of Marriage on 30/03/1997 under Chapter 150 of the Laws of Kenya, confirming their cohabitation as husband and wife. A copy of the affidavit is exhibited as JKK2. That, since 1996, they lived together with the deceased and their children on his parcel of land situated at Matundani, Kangeso, Kibwezi, measuring 0.33 hectares, and registered in his name. A copy of the title deed is exhibited as JKK. That, this parcel of land has been the deceased’s homestead and is where they built their home, raised their children and lived as a family for nearly three decades.
50. She deponed that the applicant’s claim of the said land not being the deceased’s property or being a mere plot unsuitable for burial is false, misleading and intended to discredit the clear facts.
51. She deponed that in December 2024, the deceased fell ill and commenced treatment as an outpatient at Bishop Kioko Hospital. That, his condition worsened and he was referred to St. Mary’s Hospital, Lang’ata, where he was diagnosed with prostate cancer whereafter, the deceased underwent prolonged and intensive treatment at several facilities including Kenyatta University Teaching, Referral and Research Hospital, Texas Cancer Centre Kenya, Nairobi West Hospital and Makueni County Referral Hospital. That, throughout the entire period of illness, she personally took charge of his welfare, accompanied him to all medical appointments and ensured that he received the best treatment available. Discharge summary forms and medical appointment records from various hospitals are exhibited as JKK4.
52. That, she paid the medical bills, purchased the medication and provided both physical and emotional support to the deceased until the time of his demise. That, the medical expenses spanned into millions of shillings which she met through her own resources. m-PESA statements and receipts of hospital payments are exhibited as JKK5.
53. She deponed that despite his illness, the deceased remained of sound mind, and on 08/03/2025, he executed his last Will and Testament. That, upon his death, the Will was read to the family virtually on 19/08/2025 and physically at Kibwezi on 29/08/2025, in the presence of the Applicant and all concerned parties. That, Clause 5 of the will clearly provides that the deceased be buried at his parcel of land in Matundani, Kangeso, Kibwezi, which is his homestead and which has always been their residence as a family. That, the Applicant is fully aware of these burial wishes yet she seeks to frustrate them by filing the present application, despite having accepted other provisions of the Will that benefit her.
54. She deponed that as part of preparations for his burial, she lawfully procured the death certificate, a letter from the Civil Registry confirming surrender of the deceased’s National Identity Card and a Burial Permit. Copies of these documents are exhibited as JKK6a, 6b & 6c.
55. She deponed that it is inconceivable that she would be in possession of such sensitive and official documents unless she was truly part of the deceased’s life and aware of his wishes concerning his final resting place. That, the Chief of Kangeso Location, by his letter dated 25/09/2025 confirmed that she and her children were the family of the deceased and had lived with him on his parcel of land at Matundani. A copy of the letter is exhibited as JKK7.
56. She deponed that the Applicant has chosen to selectively rely on provisions of the Will that are favourable to her while rejecting Clause 5 which is inconvenient to her. That, this selective acceptance of the Will is dishonest and contrary to law, as a Will must be respected in its enti
[...truncated]
IN THE HIGH COURT AT MAKUENI
FAMILY DIVISION
MISC. CIVIL APPLICATION NO. E016 OF 2025
IN THE MATTER OF THE ESTATE OF KILLIAN ANSELM MWOLOI (DECEASED)
AND
IN THE MATTER OF APPLICATION FOR BURIAL ORDERS
BETWEEN
MARGARET HALIMA MWOLOI…….…… APPLLICANT/RESPONDENT
-VERSUS-
JULIET KAMBUA KITONYO……………....1ST RESPONDENT/APPLICANT
JOSEPH MBALU MUTAVA…………..…....2ND RESPONDENT/APPLICANT
KIBWEZI FUNERAL HOME…………………………….…..3RD RESPONDENT
RULING
Introduction
1. There are two applications for determination. The application dated 10/09/2025 was filed by Margaret Halima, seeking inter alia for an injunction to restrain Juliet Kambua, Joseph Mutava and their agents from interfering with the body of the late Killian Anselm Mwoloi or proceeding with any burial arrangements. Margaret deponed that she is the only legal wife of the deceased.
2. Juliet Kambua and Joseph Mutava reacted to the said application through an application dated 23/09/2025 which seeks to have the former struck out for being res judicata.
Backgroud
3. Joseph Mutava was the Applicant in Makindu CM’s Succession Misc Application No. E071 of 2025 where he deponed that he is an executor of the deceased’s last will and testament and sought to enforce the deceased’s wishes as set out in the will. He deponed that the deceased had clearly expressed his wishes, in clause 5 of the will, to be buried at his homestead in Matundani, Kangeso, Kibwezi but Margaret objected to the same and insisted that the deceased be buried at her home in Kyanginywa.
4. The trial court delivered a ruling on 19/09/2025 and issued the following orders;
a) That a declaration is hereby made that the late Killian Mwoloi, who died on 11th August 2025, died testate having prepared and executed a last will and testament dated 8th March 2025 which is uncontested.
b) That a declaration is hereby made that the will names the Applicant as the executor of the will, which appointment bestows upon the executor legal authority to enforce and implement the terms of the will.
c) That a declaration is hereby made that the late Killian Anselm Mwoloi be buried at his homestead in Matunduni, Kangeso, Kibwezi, in accordance with clause 5 of his duly executed will and that such burial be undertaken and completed within 14 days of the issuance of this court orders.
d) That an order is hereby made restraining Ms. Margaret Njeri Mwoloi, her family members, friends, agents, servants or any other person acting under her instructions from disputing the burial site, blocking, disrupting or in any way interfering with the funeral and burial arrangements of the late Killian Anselm Mwoloi at Kangeso, Kibwezi.
e) That the Officer Commanding Station (OCS) Kibwezi do supervise the funeral arrangements and burial of the deceased at Kangeso, Kibwezi and ensure that peace, order and security are maintained during the burial.
The Application dated 23/09/2025
5. The applicant sought the following orders;
a) That this honorable court be pleased to strike out the Applicant’s application dated 10th September 2025 for being res judicata, frivolous, vexatious and an abuse of the process of this honorable court, the issues therein having been conclusively determined in Makindu CM Misc Application No. E071 of 2025.
b) That this Honourable Court do find and hold that the present application is filed in contravention of Sections 6 and 7 of the Civil Procedure Act, as the matter is already determined, and the Applicant as well as the parties were fully aware of the orders issued on 19th September 2025.
c) That this Honourable Court do reaffirm and direct strict compliance with the orders issued on 19th September 2025 by Hon. O. A. Nyandusi, RM, in Makindu CM Misc. Application No. E071 of 2025.
d) That pending the hearing and determination of this application, the Applicant/Respondent herein do bear the costs of preservation of the body of the deceased.
e) That costs of this application be awarded to the Respondent.
6. The application is supported by the grounds on its face and the affidavit of Joseph Mbalu Mutava sworn on the same day.
7. He deponed that he is well versed with the matters in issue hence competent to swear this affidavit and is also the executor of the will of the late Killian Anselm Mwoloi made on 8th March 2025. A copy of the will is exhibited as JMM1. That, following the death of the late Mwoloi, he duly convened the families of his two widows Margaret Halima Mwoloi and Juliet Kambua Kitonyo and read the will to both of them virtually on 19/08/2025 and thereafter physically at Kibwezi on the 29/08/2025. A screen shot of the video conference is exhibited as JMM2.
8. That, inspite of Clause 5 of the will expressly indicating the deceased’s preferred place of burial, being Matundani, Kangesu Kibwezi, the Applicant herein refused to heed and demanded to bury the deceased in her home in Kyanginywa. That in order to implement the terms of the will in his capacity as executor, he filed an application at Makindu Principal Magistrates Court, on 05/09/2025, being MCSUCCMISC/E071/2025 Joseph Mbalu Mutava -vs- Margaret Njeri Mwoloi and Juliet Kambua Kitonyo (interested party) – ‘Makindu matter’. A copy of the application is exhibited as JMM3.
9. He deponed that on 08/09/2025, the court directed that the application be served upon the Respondents for inter partes hearing and it was duly served on 09/09/2025. A copy of Affidavit of Service is exhibited as JMM4. That, despite service of the pleadings, the Respondent did not file a reply to the application and subsequently the application was heard and determined on 19/09/ 2025 and the court granted the orders sought in the application in their entirety. A copy of the court order is exhibited as JMM5. That, it is therefore clear that the application filed in Makindu Law Courts was earlier in time and involved the same parties and the same subject matter as the present application hence rendering the present application res judicata.
10. He deponed that the Applicant, being fully aware of the subsisting proceedings and orders of the Makindu Principal Magistrates Court, has now resorted to filing the present application before this Honourable Court as a calculated and clever ploy to circumvent and undermine the lawful orders issued therein, in the hope of securing a more favourable forum, which amounts to forum shopping and a blatant abuse of the court process. That, the present application is an abuse of the court process and ought to be struck out in limine.
11. He deponed that as executor of the estate, he continues to bear responsibility for safeguarding the estate’s assets and meeting necessary expenses and the ongoing disputes are causing the estate to incur unnecessary costs and delays in administration.
12. The application was opposed through the Replying Affidavit of Margaret Halima sworn on 29/09/2025.
13. She deponed that according to advice from her Advocates which she believes to be true, the Application dated 23/09/2025 is fatally defective and an abuse of court process and time and should be struck out. That, on 11/09/2025, she received a phone call from her brother-in-law, at around 11am, while in Nairobi having a meeting with her Advocates on record. The brother-in-law informed her that some documents had been dropped at her home in Uthithuni Village by two unknown individuals who only identified themselves as Musau of telephone number 0758058708 and the other was Samson.
14. That, after returning home, she perused the documents and found that they had neither a case number nor a stamp and upon further consultation and review by her Advocates on record, he confirmed that the same had no case number and stamp as already admitted in their Affidavit of service marked as “JMM-4” and thus he was not in a position to verify the authenticity of the documents in the e-filing portal and as such, she was to ignore the documents until served with a proper order and pleadings. A copy of the bundle of documents delivered to her home is exhibited as MHM-01.
15. That, she instructed her Advocates on record to file the Application dated 10/09/2025 and the same was filed under urgency on 11/09/2025 and directions issued on 13/09/2025. A copy of the Court’s directions issued is exhibited as MHM-02.
16. That, on 15/09/2025, her Advocates served the pleadings and court order of 13/09/2025 upon the Respondents through WhatsApp but it was only the 3rd Respondent herein who acknowledged receipt and indicated that the matter indeed related to their mortuary. That, an Affidavit of service dated 15/09/2025 was filed.
17. That, on 17/09/2025, her Advocates on record effected physical service of the pleadings and Court order upon the 2nd Respondent at their offices located in Bankers Court, Green Lane (behind Daystar University) and they acknowledged receipt by appending their stamp on the documents. An Affidavit of service dated 17/09/2025 was filed.
18. She deponed that according to advice from her Advocates which she believed to be true, by the time the 1st and 2nd Respondents were granted their order on 19/09/2025, they were already aware of this Honorable Court’s Orders granted on 13/09/2025. That, by 19/09/2025, when Makindu CM Misc Application No. E071 of 2025 was coming for directions before the Magistrate Court, the 1st and 2nd Respondents herein were aware that she had appointed the firm of JN & P LAW ADVOCATES LLP to represent her hence they ought to have served them with a Mention Notice for the upcoming matter but they deliberately failed to do so.
19. She deponed that according to advice from her Advocates which she believed to be true, the 1st Respondent is a Senior Counsel and former High Court Judge and thus he had a professional obligation as an officer of the Court to bring to the attention of the Makindu court, the Orders issued on 13th September and further request the Court to stay the proceedings pending the determination of the Application filed herein as the High Court is a superior court and all its orders supersede those of the Chief Magistrate Court.
20. She deponed that according to advice from her Advocates which she believed to be true, the Orders granted in Makindu CM Misc Application No. E071 of 2025, were obtained fraudulently and through concealment of material facts and the same would not have been granted if the Magistrate Court was made aware of the Orders issued by this Honourable Court on 13/09/ 2025.
21. She deponed that the orders of 19/09/2025 in Makindu CM Misc Application No. E071 of 2025 were null and void and cannot be used as a basis of the Application dated 23/09/2025 as the same were obtained when orders of the High Court existed and thus the principle of res judicata cannot be invoked herein.
22. The application dated 23/09/2025 has priority as it has potential to be dispositive. The same was canvassed through written submissions but I didn’t see any submissions from Margaret Halima with respect to the application.
Submissions by the Applicants (Juliet Kambua & Joseph Mutava)
23. It was submitted that the Originating Summons (O.S) dated 10/09/2025 offends the doctrine of sub judice as codified under section 6 of the Civil Procedure Act, and is further barred by the doctrine of res judicata under section 7 of the same Act. That, instead of filing a response to the Makindu matter, Margaret Halima chose to file the O.S in this court while fully aware that there was a live matter before the Makindu court involving the same parties, the same subject matter and the same reliefs. That, this conduct is a textbook example of forum shopping, which our courts have consistently frowned upon. Reliance was placed on Thiba Min. Hydro Co. Ltd -vs- Josphat Karu Ndwiga [2013] eKLR where the Court emphasized that pursuing parallel proceedings over the same matter creates a risk of conflicting decisions and an abuse of the judicial process.
24. It was submitted that on 19/09/2025, the Makindu court delivered a ruling in which it upheld the validity of the Will, affirmed Clause 5 and directed that the deceased be buried at Matundani, Kangeso, Kibwezi. That, the issues raised herein to wit, burial place, validity of the Will, and rights of the parties were conclusively determined by a court of competent jurisdiction. Reliance was placed on E.T -vs- Attorney General & Anor [2012] eKLR where the Court of Appeal stated;
“The doctrine of res judicata is meant to bar parties from litigating on the same issues again and again, and also to protect the court’s precious time from being wasted. Litigation must come to an end.”
25. It was submitted that the Makindu Court affirmed the validity of the will and the burial directions therein and unless set aside, that ruling binds all parties and must be respected. It was contended that the application dated 23/09/2025 is not speculative or misplaced but is a necessary procedural step to ensure that the deceased is laid to rest in accordance with his lawful wishes and the binding orders already issued. That, to deny this application would not only prolong unnecessary anguish but would also erode public confidence in the sanctity of court orders and finality of litigation.
26. I have carefully considered the applications, responses and submissions, and the issue for determination is whether the O.S dated 10/09/2015 is barred by the doctrines of sub-judice and res judicata based on the Makindu matter.
Analysis
27. Section 6 of the Civil Procedure Act provides 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 suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
28. The plain reading of the above section connotes the existence of multiple similar suits involving the same subject matter and same parties but filed in different forums of competent jurisdiction. That is not the case here as the Makindu matter is no longer active before that court pursuant to the ruling delivered on 19/09/2025.
29. As for 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 … and has been heard and finally decided by such court.”
30. Jurisprudence from our courts: John Florence Maritime Services Limited & another -vs- Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR) has now distilled the essential ingredients of the doctrine to be;
a. Was there previous litigation in which identical claims were raised or in which identical claims could have been raised?
b. Are the parties in the present suit the same as those who litigated the original claim?
c. Did the Court which determined the original claim have jurisdiction to determine the claim?
d. Did the original action receive a final judgment on the merits?
31. The application before the Makindu court was basically about the place of burial where it was alleged that the deceased had left a will in which he expressly stated that he wished to buried at the home of Juliet Kambua Kitonyo. The O.S before this court seeks to have the deceased buried at the home of Margaret Halima which, allegedly, is his matrimonial home. The existence of the deceased’s will is also hotly contested in the O.S. Evidently therefore, the issues raised in both proceedings are identical.
32. The parties in both proceedings are also similar save for the 3rd Respondent (Kibwezi Funeral Home) which was not a party in the Makindu matter. Further, it is not in dispute that the Makindu court had jurisdiction to determine the claim.
33. As to whether the Makindu matter received a final judgment on the merits, it is a fact that the matter proceeded unopposed when Margaret Halima did not participate. On one hand, Margaret Halima deponed that she was served with court papers without a case number hence impossible for her Advocate to verify their authenticity on the Judiciary e-filing portal. On the other hand, Juliet Kambua and Joseph Mutava insisted that she was served with proper papers but she willingly chose not to participate. That back and forth notwithstanding, it is a fact that on 13/09/2025, this court had issued directions pursuant to the O.S where it allowed prayer (ii) therein to wit;
“That pending the hearing and determination of this application inter partes, this Honorable court be pleased to issue a temporary injunction restraining the 1st and 2nd Respondents, their agents, servants or any person acting on their instructions from interfering with the body of the deceased Killian Anselm Mwoloi or proceedings with any burial arrangements contrary to the wishes of the Applicant and the immediate family.”
34. The Affidavit of Service dated 17/09/2025 and filed by the Advocate of Margaret Halima shows that the 2nd Respondent was served with the directions of this court on 17/09/2015. Indeed, the return copy of the directions has a stamp affixed on it showing that the same was received at the office of the 2nd Respondent at 8.48am on the said date. Considering that the 2nd Respondent (Joseph Mutava) was the applicant in the Makindu court, it is evident that by the time he appeared in the Makindu court on 19/09/2025, he was well aware of the directions of this court
35. The 2nd Respondent, being an officer of the court as had a duty to inform the learned magistrate about the proceedings in the superior court otherwise as it stands now, the ruling of the Makindu court contradicts the directions of this court and having been made after the said directions, it cannot stand as a to the O.S in this court.
36. Be that as it may, the Makindu matter did not receive a final judgment on merits in that, the alleged will is hotly contested and it was never propounded in order to determine its validity or lack thereof. Further, the marital statuses of Margaret Halima and Juliet Kambua to the deceased have not been determined to their logical conclusion. In the persuasive case of M W K -vs- A M W [2016] eKLR, which I agree with, the court (Joel Ngugi J) posited that;
“Both the policy rationale as well as our case law lean in the direction that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to suits that are dismissed on preliminary technical points. Res Judicata bars a future suit only when the case is resolved based on the facts and evidence of the case or when the final judgment concerned the actual facts giving rise to the claim. For example, dismissal of a case for lack of subject matter or because the service was improper or even for want of prosecution does not give rise to judgments on the merits and therefore do not trigger the plea of res judicata.”
37. The upshot is that the O.S dated 10/09/2025 is not res judicata hence the application dated 23/09/2025 was overtaken by the event of the directions of this court in the O.S as will be seen below.
The Originating Summons dated 10/09/2025
38. The O.S seeks the determination of the following questions;
i. Whether this Honourable Court should issue an injunction to restrain the 1st Respondent from intermeddling with the body and burial arrangements of the deceased, Killian Anslem Mwoloi.
ii. Whether the Applicant, as the lawful widow married under the The African Christian Marriage Act (now repealed) has the primary right to oversee the funeral and burial arrangements of her deceased husband.
iii. Whether the deceased should be buried at his matrimonial home in Plot no. 1128 Ngandani Settlement Scheme, in Uthithuni Village, Ngandani Location in Kibwezi District with the applicant or at his ancestral home in Mbuvuni Village, Mwonjani Sub-Location, Mwonjani Location in Mbitini, Makueni County, for a dignified and peaceful burial.
iv. Who should bear the costs of this Application?
39. Further, the O.S seeks the following orders;
i. Spent.
ii. Spent.
iii. That pending the hearing and determination of the underlying Succession Cause, this Honourable Court be pleased to issue an injunction restraining the 1st and 2nd Respondents, their agents, servants, or any person acting on their instructions from interfering with the body of the deceased or the burial arrangements.
iv. That this Honourable Court be pleased to appoint the Applicant as the sole person mandated to oversee and conduct the funeral and burial arrangements of the deceased.
v. That this Honourable Court be pleased to order that the deceased be buried at his matrimonial home in Plot no. 1128 Ngandani Settelement Scheme, in Uthithuni Village, Ngandani Location in Kibwezi District with the applicant or at his ancestral home in Mbuvuni Village, Mwonjani Sub-Location, Mwonjani Location in Mbitini, Makueni County, for a dignified and peaceful burial.
vi. That the costs of this application be provided for.
40. The O.S is supported by the grounds on its face and the affidavit of Margaret Halima sworn on the same day and further affidavit sworn on 29/09/2015. She deponed that she is the lawful widow of the late Killian Anselm Mwoloi (the deceased) who died on 11/08/2025. That, she was lawfully married to the deceased under The African Christian Marriage Act (now repealed) on 20/04/1974 and the marriage was blessed with Five (5) children. A copy of the marriage certificate is exhibited as MHM-01.
41. She deponed that they established their matrimonial home in Plot No. 1128 Ngandani Settlement Scheme, in Uthithuni Village, Ngandani Location, in Kibwezi District in Makueni County where they resided together as a family until the time of his demise. A letter from the area Assistant Chief is exhibited as MHM-02. That, the deceased was diagnosed with terminal illness in December, 2024 and after prolonged and painful illness, he succumbed to the illness on 11/08/2025 after which his remains were transferred to Kibwezi Funeral Home (3rd Respondent) where they have been kept pending funeral preparations.
42. She deponed that her family was busy planning for Deceased’s funeral when the 1st Respondent herein emerged and purported to have been married to the deceased under Kamba customary law and claimed that she was the deceased’s legitimate wife and therefore responsible for the funeral and burial arrangement. That, any such marriage is null and void as it was contracted during the subsistence of a valid marriage. That, the 1st Respondent is therefore a stranger to the estate of the deceased and has no locus standi whatsoever with respect to the funeral arrangement, burial and determination of the burial place.
43. She deponed that following the death of her husband, the 1st Respondent informed them that prior to his demise, the deceased had left a written Will which was under the custody of the 2nd Respondent. That, thereafter, together with her Children and other family elders they had a meeting with the 2nd Respondent’s at the East View Hotel in Kibwezi which was also attended by the 1st Respondent wherein the 2nd Respondent produced a Will which is highly contested and which the 1st and 2nd Respondents are now using to claim a right to bury the deceased at the 1st Respondent’s home in Matundani Village, Kangeso, in Kibwezi District.
44. She deponed that they have perused the Will purported to have been written and signed by the deceased and a cursory look of the same will establish that it is a forgery in that, it is not signed by the deceased with his own handwriting but instead it purports that the deceased executed the same by placing his thumb print yet the deceased was a qualified Clinical Officer who, throughout his career, worked at both the AMREF and Action Aid International before he opened his Clinic in Kibwezi town. A copy of the purported will is exhibited as MHM -03.
45. She deponed that the intended burial of her husband at the 1st Respondent''s home is abhorrent to their family culture and traditions, is opposed by their children, the entire extended family and their Clan and is a recipe for chaos and breach of peace. A copy of a letter from their children is exhibited as MHM -04.
46. She deponed that as the lawful widow, it is her right and duty to give her husband a dignified burial at their matrimonial home in Plot No. 1128 Ngandani Settlement Scheme, in Uthithuni Village, Ngandani Location, in Kibwezi District or, in the alternative, at his ancestral home in Mbuvuni Village, Mwonjani Sub-Location, Mwonjani Location, in Mbitini, Makueni County where his parents and ancestors are buried. That, the actions of the 1st and 2nd Respondents are causing her and her children immense mental anguish and are desecrating the memory of her late husband.
47. She deponed that this matter is extremely urgent as the 1st and 2nd Respondents are making rapid plans for the burial and may move the body from the mortuary at any time, thereby rendering this application nugatory. A letter from the 2nd Respondent issuing an ultimatum is exhibited as MHM-05. That, it is in the best interest of justice that this Honourable Court grants the orders sought to ensure a peaceful, dignified, and proper burial and to preserve the sanctity of her lawful marriage.
48. The O.S is opposed through the Replying Affidavit of Juliet Kambua sworn on 26/09/2025 where she deponed that she began cohabiting with the deceased, as husband and wife, in the year 1996 and from that time until his death on 11/08/2025, they lived together continuously as man and wife. That, out of the said union, they were blessed with two children namely Michael Muamba, born on 16/02/1997, and Esther Kalekye born on 09/11/1999.
49. She deponed that the deceased acknowledged both children as his own, and their birth certificates clearly bear his name as their father. Copies of their birth certificates are exhibited as JKK1a and “JKK1b. That, in further affirmation of their marital relationship, the deceased swore an Affidavit of Marriage on 30/03/1997 under Chapter 150 of the Laws of Kenya, confirming their cohabitation as husband and wife. A copy of the affidavit is exhibited as JKK2. That, since 1996, they lived together with the deceased and their children on his parcel of land situated at Matundani, Kangeso, Kibwezi, measuring 0.33 hectares, and registered in his name. A copy of the title deed is exhibited as JKK. That, this parcel of land has been the deceased’s homestead and is where they built their home, raised their children and lived as a family for nearly three decades.
50. She deponed that the applicant’s claim of the said land not being the deceased’s property or being a mere plot unsuitable for burial is false, misleading and intended to discredit the clear facts.
51. She deponed that in December 2024, the deceased fell ill and commenced treatment as an outpatient at Bishop Kioko Hospital. That, his condition worsened and he was referred to St. Mary’s Hospital, Lang’ata, where he was diagnosed with prostate cancer whereafter, the deceased underwent prolonged and intensive treatment at several facilities including Kenyatta University Teaching, Referral and Research Hospital, Texas Cancer Centre Kenya, Nairobi West Hospital and Makueni County Referral Hospital. That, throughout the entire period of illness, she personally took charge of his welfare, accompanied him to all medical appointments and ensured that he received the best treatment available. Discharge summary forms and medical appointment records from various hospitals are exhibited as JKK4.
52. That, she paid the medical bills, purchased the medication and provided both physical and emotional support to the deceased until the time of his demise. That, the medical expenses spanned into millions of shillings which she met through her own resources. m-PESA statements and receipts of hospital payments are exhibited as JKK5.
53. She deponed that despite his illness, the deceased remained of sound mind, and on 08/03/2025, he executed his last Will and Testament. That, upon his death, the Will was read to the family virtually on 19/08/2025 and physically at Kibwezi on 29/08/2025, in the presence of the Applicant and all concerned parties. That, Clause 5 of the will clearly provides that the deceased be buried at his parcel of land in Matundani, Kangeso, Kibwezi, which is his homestead and which has always been their residence as a family. That, the Applicant is fully aware of these burial wishes yet she seeks to frustrate them by filing the present application, despite having accepted other provisions of the Will that benefit her.
54. She deponed that as part of preparations for his burial, she lawfully procured the death certificate, a letter from the Civil Registry confirming surrender of the deceased’s National Identity Card and a Burial Permit. Copies of these documents are exhibited as JKK6a, 6b & 6c.
55. She deponed that it is inconceivable that she would be in possession of such sensitive and official documents unless she was truly part of the deceased’s life and aware of his wishes concerning his final resting place. That, the Chief of Kangeso Location, by his letter dated 25/09/2025 confirmed that she and her children were the family of the deceased and had lived with him on his parcel of land at Matundani. A copy of the letter is exhibited as JKK7.
56. She deponed that the Applicant has chosen to selectively rely on provisions of the Will that are favourable to her while rejecting Clause 5 which is inconvenient to her. That, this selective acceptance of the Will is dishonest and contrary to law, as a Will must be respected in its enti
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