In re Estate of Elizabeth Wairimu Waiyaki (Deceased) - Eunice Wamaitha & John Njenga Mang'ara (Objectors) v Trustees of the Will of Elizabeth Wairimu Waiyaki

The court applied Section 7 of the Civil Procedure Act and the Uhuru Highway test (same parties, same title, competent court, same issue). Although some properties overlapped, the earlier claim was for adverse possession against Elizabeth's estate, whereas this claim is for reasonable provision as dependants under the Succession Act. The parties and cause of action are dissimilar, so the doctrine does not squarely apply.

The trustees argued that a daughter-in-law, her children and grandchildren are not dependants. The court accepted that they cannot claim directly as heirs of Elizabeth, but held they claim indirectly through their deceased parents/husband, whose inheritance does not cease on death. Following the Wakagoto authorities, grandchildren step into the shoes of their dead parents and take the share that would have gone to them.

Section 5 confers testamentary freedom but it must be exercised responsibly and not to hurt those the testator was responsible for (Ndolo v Ndolo; Banks v Goodfellow). The evidence showed Elizabeth provided for all her children in life and in the Will but bypassed the estate of her late son Dr. Benjamin and did not transmit all properties gifted to KM. The court found the treatment amounted to disdain and invoked Sections 26 and 27 to remedy it.

The trustees argued John was not a legal representative of his father KM's estate. The court held that rejecting his claim on that basis would sacrifice substantive justice to procedural technicalities, contrary to Article 159(1)(d) and (e) of the Constitution and Sections 1A and 3A of the Civil Procedure Act. He claims for himself and his siblings what ought to have gone to their father.