Jacqueline Roselynda Muthoni Kubai v Christina Gakuhi Kubai

d. The person to whom the Grant of Probate was issued has misappropriated the estate of the Deceased and has failed to produce a full and accurate inventory of the assets and dealings in the Deceased’s estate. 3. The Application is accompanied by a Supporting Affidavit also dated 6th February 2025. The Affiant deposes that she is a daughter and thus beneficiary of the Estate of the Late Samson Owen Kibuthu Kubai who she alleges was inadequately provided for from the Deceased’s estate. 4. She brings the instant Application in her capacity as a grandchild of the Deceased, and therefore a beneficiary, as well as the Administrator of the Estate of her Late father Samson Owen Kibuthu Kubai. 5. The Applicant further deposes that the Respondent illegally and fraudulently obtained Grant of Probate, which ought to be revoked, by presenting a will with various irregularities being: 6. i. An original will without the testator’s signature ii. A copy of the will without signature iii. A copy of the will with the testator’s signature but without the names and signatures of the witnesses and; iv A typed copy of the will bearing the signature of only one witness. In response, the Respondent filed a Notice of Preliminary Objection dated 1st July 2025. The Preliminary Objection is premised on four main grounds, to wit; a. That this Court lacks the necessary jurisdiction to open, review, or set aside the decision of the Court of Appeal in this cause which was delivered in Civil Cause No. 628 of 2019. That this judgment can only be overturned by the Supreme Court of Kenya, and no appeal has been lodged. b. That this matter is res judicata, as this Court has pronounced itself conclusively on the same. c. That the Application is also barred by the doctrine of functus officio. d. That the Applicant lacks the necessary locus standi to approach this Court on behalf of and represent the interests of the estate of Samson Owen Kibuthu Kubai (Deceased) as she has failed to present to this Court a Grant to that effect. 7. The Respondent also filed a detailed Replying Affidavit dated 19th September 2025 in opposition to the Application for revocation of grant. The gist of the Replying Affidavit is that the instant Application is one in a series of many Applications filed by the Applicant’s brother, one Andrew Kamau Kubai before this Court and the Court of Appeal. 8. The Respondent deponed to the fact that her Petition for Grant of Probate in High Court Succession Cause No. 1860 of 1996 was consolidated for hearing with a Petition for Grant of Letters of Administration intestate in Succession Cause 1940 of 1996, filed by the Deceased person’s former wives and children. 9. In a judgment delivered on 19th December 2023, the Petition for Grant of Probate was allowed whereas the Petition for Grant of Letters of Administration was dismissed. 10. The Respondent further deposes that an Application for review of this decision was heard and dismissed in a ruling dated 4th June 2014 delivered by the Hon. Justice Kimaru. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17812/eng@2025-10-03 2

page 2 of 5

11. A Summons for Revocation of the Grant of Probate issued to the Respondent filed by Moses Medza, Stephen Kibuthu and Andrew Kamau Denis Kubai on allegations that the will was forged was also dismissed on grounds of res judicata in line with the judgment in the substantive suit and the review application. 12. And on 12th May 2016 yet another Application was filed by the Applicant’s brother seeking conservatory orders against intermeddling or disposal of the free estate of the Deceased. It also sought leave to appeal the ruling of the Court dated 13th March 2015 and the judgment delivered on 19th December 2013 in the matter. This too was dismissed with costs by Justice Muchelule on 26th January 2017. 13. In the Respondent’s estimation the Applicant has now taken over from his brother, one Andrew Kamau Denis Kubai to engage her in endless litigation regarding the issue of whether the will was forged/fake, an issue which this Court has determined conclusively. 14. When the Summons for Confirmation of Grant was filed in 2019, Andrew Kamau Denis Kubai and Moses Medza filed Affidavits in protest. In a ruling delivered on 2nd August 2019, Lady Justice Ongeri found in favor of the Applicant and allowed the summons. 15. Andrew Kamau Denis Kubai instituted Civil Appeal No. 628 of 2019 against the Applicant, but the said Appeal was also dismissed and there has never been a subsequent appeal in the matter. 16. From the totality of the material provided to this Court by the parties, the following are the issues falling for determination: a. Whether the Respondent’s Notice of Preliminary Objection dated 1st July 2025 is merited; b. Whether the Applicant’s application meets the threshold for the revocation of a grant within the meaning of Section 76 of the Law of Succession Act. A. Whether the Respondent’s Notice of Preliminary Objection dated 1st July 2025 is merited; 17. A preliminary objection consists of a point of law that has been pleaded or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit. (See the case of Mukisa Biscuit Manufacturer Co. Ltd v West End Distributors Limited)[1969] EA 696. 18. The Respondent’s Preliminary Objection is hinged upon two major issues of law: that the Applicant lacks the locus standi to prosecute the suit on behalf of the Estate of of the Late Samson Owen Kibuthu Kubai and that this matter is res judicata having been determined with finality by this Court, which is now functus officio. 19. On the subject of locus standi, I have perused the Applicant’s Annexure JRMK-3, being a Certificate of Confirmation of Grant dated 4th April 2007 was issued to Florence Mumbi Kubai and Jaqueline Muthoni Kubai, the Applicant herein. 20. I am satisfied with this as proof that the Applicant is a proper representative of the Estate of the Late Samson Owen Kibuthu Kubai as she asserts and therefore she has proper standing to institute the instant Application before this Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17812/eng@2025-10-03 3

page 3 of 5

21. I now turn to the question of whether the matter is res judicata as argued by the Respondent. The doctrine of res judicata is provided for under Section 7 of the Civil Procedure Code in the following terms: “ No court shall try any suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 22. In Mairani & 2 others v Director of Land Adjudication & Settlement & 3 others [2025] KECA 400 (KLR) the Court of Appeal sitting in Nyeri expressed itself as follows on the subject: The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely, that there must be finality to litigation and that an individual should not be harassed twice with the same account of litigation. The factors that the court takes into consideration in deciding if a matter is res judicata were laid out by the Supreme Court of Kenya in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR in the following terms: “Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: i. the matter in issue is identical in both suits; ii. the parties in the suit are the same; iii. sameness of the title/claim; iv concurrence of jurisdiction; and v finality of the previous decision.” 33. Expounding further on the essence of the doctrine of res judicata this Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR stated as follows: “The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unravelling uncontrollably.” 23. On the face of the Applicant’s Summons for Revocation of Grant, this Court finds that the revocation is sought for the reason that it was allegedly obtained fraudulently, through the concealment of facts material to the Estate of the Deceased and the instant case. 24. In her Affidavit in support, the Applicant alleges that the will and the Respondent’s Identity Card presented during the Petition for Grant of Probate are a forgery. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17812/eng@2025-10-03 4

page 4 of 5

25. In Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the application of Section 7 of the Civil Procedure Act held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine of res judicata to be invoked. That is: a. The suit or issue was directly and substantially in issue in the former suit; b. That former suit was between the same parties or parties under whom they or any of them claim; c. Those parties were litigating under the same title; d. The issue was heard and finally determined in the former suit; e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 26. I have looked at the record of the pleadings filed in this matter, the judgment of the Court dated 19th December 2013 and the numerous Applications on record. 27. To my mind, this Application is identical to the one filed by Andrew Kubai, dated 25th November 2014 for revocation of Grant of Probate in this matter for the reason that the death certificate, will and identity card produced by the Respondent were forged. The interests of the Applicant in this matter are also similar to those of her brother Andrew Kubai – that the estate Estate of their father Samson Owen Kibuthu Kubai should be provided for. 28. I am of the persuasion that this Court has determined the question of whether the documents presented by the Respondent are fraudulent, and reached a decision to the contrary on numerous occasions. 29. Indeed, this Court is functus officio and cannot purport to re-open a matter to which it has rendered a final decision. (See Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR). 30. The continued filing of similar applications by the Applicant and her siblings is, with respect, not only vexatious and an abuse of the Court process, but also imposes an undue burden on the Respondent by subjecting them to protracted and unnecessary litigation. 31. In the end, I make the following orders:i. The Notice of Preliminary Objection dated 1st July 2025 is merited and is allowed. ii. The Application dated 6th February 2025 is dismissed with costs to the Respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF OCTOBER 2025. ……………….. S. N. RIECHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17812/eng@2025-10-03 5

page 5 of 5