Gladys Kerubo Omandi & 3 others v Hellen Kemunto Nyakundi & 2 others

3. In addition, the 1st and 2nd Petitioners filed Grounds of Opposition in which they similarly challenge the competency of the Summons for Revocation dated 29th September 2025. They contend that the Applicants previously pursued an objection which was withdrawn, thereafter invoked the appellate process whose dismissal they argue rendered the matter final, and that the present summons therefore amounts to a collateral attack on concluded proceedings. They further argue that the Applicants have not demonstrated any of the statutory grounds under section 76 of the Law of Succession Act and that the application is intended merely to delay the administration of the estate. 4. The material before the Court for purposes of this ruling includes the Summons for Revocation of Grant dated 29th September 2025; the Supporting Affidavit sworn by Gladys Kerubo Omandi on 29th September 2025 together with her Supplementary Affidavit bearing an annexed customary marriage affidavit dated 10th March 2016; the Notice of Preliminary Objection by the 3rd Petitioner dated 21st October 2025; the Protestors’ Preliminary Objection dated 17th September 2025; the Replying Affidavit sworn on behalf of the 3rd Petitioner on 28th October 2025; and the respective written submissions, namely the 1st and 2nd Petitioners’ submissions, the 3rd Petitioner’s submissions, and the Applicants’ submissions, all dated 11th November 2025. 5. This ruling addresses both objections in a consolidated manner while setting out the procedural path for the Summons for Revocation dated 29th September 2025. Undisputed background 6. Certain matters emerge clearly from the record. First, the grant of letters of administration intestate was issued to the 1st to 3rd Petitioners, and subsequently confirmed on 23rd April 2025. Second, there had previously been an objection lodged in 2017, which was withdrawn before hearing and was expressly marked “withdrawn” on the record. Third, following that withdrawal, some appellate steps were taken, including filing of a notice of appeal and an interlocutory application for stay, which was dismissed; however, no record of appeal was filed, and no appellate judgment on the merits exists. 7. Fourth, the Summons for Revocation dated 29th September 2025 alleges concealment of estate assets, including the Eldoret parcels, and raises issues of dependency, entitlement, and non-disclosure of material facts. These allegations are contested. At this stage, I do not determine their merits; the only question is whether they may be considered by this Court. Issues for determination 8. The questions arising from the two Preliminary Objections are: 1. Whether the application for revocation of grant is res judicata 2. Whether the suit pending in Eldoret deprives this Court of jurisdiction 3. Whether the revocation application amounts to an abuse of process. Jurisdiction and the Doctrine of Functus Oficio 9. The locus classics on Preliminary Objection is the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696, where Law J.A. stated: “ So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18511/eng@2025-11-27 2

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the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Sir Charles Newbold, President, stated in the same judgment as follows: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 10. J.B. Ojwang, J (as he then was) in the case of Oraro v Mbajja (2005) eKLR had the following to state regarding a ‘Preliminary Objection’. “ I think the principle is abundantly clear. A “preliminary objection”, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement …….. that, “where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”. 11. From the foregoing, I find that the issue as to whether the court has jurisdiction to determine the application for revocation dated 29th September 2025 is a pure point of law properly raised as a Preliminary Objection. 12. The 3rd Petitioner argues that this Court lacks jurisdiction because the matter was taken to the Court of Appeal and dismissed there, thereby rendering the High Court functus officio. The Applicants, however, assert that the earlier objection was withdrawn, that no record of appeal was ever filed, and that what was dismissed was an interlocutory stay application, not a substantive appeal. 13. It is trite that the doctrine of functus officio applies where a court has issued a final judgment on the merits, thus exhausting its mandate. It does not apply where an objection is withdrawn before hearing, since a withdrawn matter produces no adjudication. Neither does the dismissal of a stay application, or an appeal for want of prosecution without a reasoned judgment on merits, amount to a final determination barring further proceedings. 14. It is undisputed that no determination of the Court of Appeal has been produced, nor is there any record showing that the appellate Court considered the merits of a revocation claim or issues of concealment of assets. The earlier objection was never adjudicated. 15. I therefore find that this Court retains jurisdiction under sections 47 and 76 of the Law of Succession Act to entertain the Summons for Revocation dated 29th September 2025. The plea that the Court is functus officio is therefore misconceived and fails. Res Judicata 16. The plea of res judicata, as raised in the 3rd Petitioner’s Preliminary Objection, is founded on the assertion that the issues raised in the Summons for Revocation were previously determined. Section 7 of the Civil Procedure Act requires that the matter be heard and finally decided. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18511/eng@2025-11-27 3

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17. On the record, the earlier objection was withdrawn before hearing. A withdrawn matter has no adjudicative effect and cannot form the basis of res judicata. Further, no appellate decision on the merits exists. The Applicants’ present claim of concealment and non-disclosure falls within section 76 of the Act and is not extinguished by the mere withdrawal or lapse of earlier processes. 18. As there is no previous determination on the merits, res judicata does not apply and this limb of the Preliminary Objection therefore fails. Effiect of Eldoret Civil Suit No. 545 Of 2013 19. The Protestors' Preliminary Objection asserts that Langas Block 2/243 and 2/244 are already the subject of litigation in Eldoret Suit No. 545 of 2013, and cannot therefore be addressed within this succession cause. 20. It is correct that where a dispute over title to property is before another court, the Succession Court should not purport to resolve that title dispute. However, the Succession Court has jurisdiction to determine whether an asset forms part of the estate, subject to the final outcome of any pending proceedings elsewhere. 21. The existence of the Eldoret suit does not bar a revocation application. It simply means that any orders in relation to those parcels must be crafted carefully so as not to conflict with the determinations of the Eldoret Court. The proper approach is to preserve the issue pending the outcome of the civil suit and not to strike out the revocation summons. 22. The allegation that the Applicants misrepresented about when they learned of the parcels is a question of fact, requiring evidence. Such factual disputes cannot be resolved at the preliminary stage. 23. I therefore find that the Protestors' Preliminary Objection does not raise a pure point of law capable of disposing of the Summons for Revocation and it equally fails. Abuse of the court process 24. Both Preliminary Objections allege that the Summons for Revocation is frivolous, vexatious, and an abuse of the process of court. Abuse of process is a serious allegation and must be demonstrated clearly. The Summons for Revocation invokes section 76 of the Law of Succession Act and alleges concealment of material facts. These are no doubt legitimate and serious grounds that the Court must examine. 25. Whether the Applicants can ultimately prove those allegations is a different question, but the application is not frivolous on its face. It raises substantive questions within the lawful mandate of the Court and this is therefore not a proper case for summary termination on grounds of abuse of process. 26. I therefore find that neither Preliminary Objection establishes abuse of process sufficient to bar the revocation application. Disposal 27. Having considered the law, the record, and the issues raised in both Preliminary Objections, the Court is satisfied that while the objections raise points of law, they are not of a nature capable of disposing of the Summons for Revocation dated 29th September 2025. The Preliminary Objections therefore fail. 28. In the result, and for the reasons given above, the Court makes the following orders: 1. The Preliminary Objection dated 17th September 2025, filed by the Applicants/Protestors, is dismissed in its entirety. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18511/eng@2025-11-27 4

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2. The Preliminary Objection dated 21st October 2025, filed by the 3rd Petitioner, is similarly dismissed in its entirety. 3. The Summons for Revocation or Annulment of Grant dated 29th September 2025 is hereby affirmed as properly before the Court and shall proceed to a full hearing on the merits. 4. The Applicants shall file and serve any additional affidavits or documents they wish to rely on within twenty-one (21) days from today. 5. The Petitioners and the Protestors shall file and serve their replying affidavits and documents within twenty-one (21) days thereafter. 6. The matter shall be mentioned on 29th January 2026 to confirm compliance and further directions. 7. The costs of both Preliminary Objections are awarded to the Applicants/Protestors, to be borne jointly and severally. DELIVERED AT NYAMIRA THIS 27TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Applicants/Objectors - Mr. Gekonga for Gekonge & Associates, Advocates For 1st & 2nd Petitioners/Respondent - Ms. Mosomi for Mosomi & Company Advocates For the 3rd Petitioner/Respondent - Mr. Ndege for K.O. Ndege & Company, Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18511/eng@2025-11-27 5

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