Tabusambu Jelel Tanui v Roda Tanui

old enough to comprehend the succession process. She urged that the ruling of the court dismissed her application which sought inclusion of the beneficiaries among other things. 4. She stated that she sought orders to preserve the estate which were vacated by the impugned ruling which she seeks to extend pending the determination of the appeal. She further averred that she has commenced the appeals process and it is important to preserve the estate. 5. The applicant, Tabusambu Jelel Tanui also swore an affidavit in support of the application. She stated that the Summons for revocation was dismissed and she seeks leave to appeal the decision. Further, that her grandchildren were excluded from the succession and she hopes to persuade the appellate court to recognise them. 6. The respondents filed Grounds of Opposition to the application. The respondent opposed the application on the following grounds; 1. The application is frivolous, vexatious and an abuse to the court process. 2. The application is untenable incompetent fatally defective and bad in law. 3. The application lacks merit and is actuated with bad faith. 4. The application is intended to waste the precious judicial time. 5. The application does not meet the threshold for grant of the orders sought. 7. Additionally, the respondent filed a Replying Affidavit dated 30th January 2025. She deponed that the application is an abuse of the court process as the applicant did not need to seek leave to appeal as the right to appeal was automatic. She deponed that the prayer for extension of interim freezing orders is res judicata having been raised and ventilated in the application dated 10th July 2024. She stated that the applicant does not have an arguable appeal and further, that the 3rd prayer is unrealistic as no sufficient reason has been tendered with regards to preservation of the estate. She urged the court to dismiss the application. 8. Felix Tanui filed a replying affidavit and was not opposed to prayer 1. He however stated that prayer 2 was res judicata having been determined vide the ruling of 18th February 2024. He stated that the confirmation of the grant was done in the year 2009 and the orders herein would disturb the estate. He further deponed that the applicant has not presented a draft Memorandum of Appeal and therefore the court cannot determine if there is an arguable appeal. He prayed the court dismiss the appeal with costs. 9. The parties were directed to file submissions on the application. Counsel for the Respondent filed submissions dated 30th January 2025 through the firm of Messrs. Emmanuel Kupkurui & Company Advocates whereas the Respondent filed submissions dated 20th May 2025 through the firm of Messrs Kipkosgei & Company Advocates. There were no submissions on record for the Applicant. Respondents’ Submissions 10. Counsel for the applicant urged that the principle of res judicata is enshrined in Section 7 of the Civil Procedure Act (Cap 21). Further, that accordingly, the core Principles of res judicata, the following principles apply: a. A previous suit must have been decided by a competent court and the matter must have been conclusively determined by a court of competent jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19085/eng@2025-11-13 2

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11. b. The same parties or their successors must be involved, this is they were the same as, or related to, the parties in the original case, and it may include their successors in title or representatives of the original litigants. c. The same subject matter must be in issue. d. The matter must have been directly and substantially determined; namely that e. The court must have made a final decision on the matter, meaning the issue was conclusively settled and not left pending. Counsel urged that the pioneer authority of Henderson v Henderson (1843) 67 ER 313 (English Case, Persuasive in Kenya) established the Henderson Rule, which states that; “ A party must bring forward his whole case, and cannot return to court with issues he could have raised earlier." 12. He submitted that in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017) eKLR, the Court of Appeal clarified that res judicata applies to both decided issues and issues that could have been litigated. The court emphasized that litigants must bring forward their entire case in the first instance, rather than litigating in instalments. Counsel additionally cited the case of John Florence Maritime Services Ltd v Cabinet Secretary for Transport & Infrastructure & 3 Others [2015] eKLR and E.T. v Attorney General & Another [2012] eKLR. 13. Counsel submitted that the Application dated 15th January, 2025 is res judicata because; i. The Applicant seeks interim freezing orders granted by the court on 29th July 2024, then the same was res judicata the same having been previously raised and ventilated in the Summons for Revocation of Grant. ii. Given that the said prayer raises issues that had already been ventilated between the same parties and before the same forum, then it is abundantly and manifestly clear that the Applicant is merely attempting to Appeal the court’s ruling issued on 18/12/2024 through the backdoor and forum shopping for a favourable judicial tribunal. 14. On extension of interim orders, counsel submitted that the power to extend the said orders is a discretionary one, and as such the Court is bound to exercise the said power judiciously and not capriciously and/or whimsically. Further, that whereas Kenyan courts have the authority to extend time limits and reinstate expired orders, such extensions are not granted automatically. The applicant must provide sufficient cause for the delay and demonstrate that granting the extension serves the interests of justice. 15. Counsel urged that the Applicant has not: a. Bothered to offer even a single satisfactory reason why she failed and/or delayed in seeking an extension of the aforementioned orders before they lapsed; b. Has not offered any convincing, compelling and persuasive reason why the said orders ought to be extended. c. She has not demonstrated in a holistic manner how the best interests of justice, for both parties herein, will be served if the said orders are extended. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19085/eng@2025-11-13 3

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16. He urged the court be persuaded by the finding in Kabogo & another v KCB Bank Kenya limited & Another (Commercial Case E006 of 2023) [2024] KEHC 6343 (KIR) (31 May 2024) (Ruling) where ex-parte orders had lapsed automatically when the applicant failed to seek an extension before their expiration. An Application for subsequent extension was deemed a miscarriage of justice. 17. On preservation of the estate, counsel cited Section 47 of the Law of Succession Act and urged that the powers therein are not automatically exercised upon application, but rather each Application has to be judiciously interrogated. Counsel cited Japheth Kaimenyi M’ndatho v M’ndatho M’mbwiria [2012] eKLR and In Re Estate of Simon Kimendero (deceased) [2020] eKLR in this regard. Counsel further submitted that it has been held that preservatory orders are in essence similar to injunctive orders, placing reliance on the holding in In the Matter of the Estate of Paulo Kiplagat Bolwo (Deceased) (2012) eKLR. He submitted that none of the conditions have been satisfied by the Applicant herein, who has merely alleged to and stated that the property may be wasted. This is merely re-litigating this matter, which has dragged in the corridors of justice on for close to twenty (20) years. 18. Counsel urged that the Applicant’s Application ought to fail as she has not demonstrated sufficient grounds why the interim orders granted by the court on 29th July 2024 ought to be extended, and why orders for preservation of the Deceased’s estate ought to be issued. Respondents’ Submissions 19. Learned counsel for the respondent submitted that the Applicant is seeking extension of interim freezing orders that had been granted on 29th July 2024 which lapsed when the court determined the application that gave rise to the said orders. The Applicant cannot therefore seek extension of interim orders that this court conclusively determined. Counsel cited the case of John Florence Maritime Services Ltd v Cabinet Secretary for Transport & infrastructure & others on res judicata and cited Section 47 of the Law of Succession Act, which gives this court power to preserve the assets of the deceased estate if it is being wasted. Counsel submitted that the power given to this honourable court is not automatic, rather the court must be satisfied with grounds brought forth by the Applicant. 20. Counsel cited the case of In the matter of the estate of Paulo Kiplagat Boiwo (deceased) (2012) eKLR, the court laid down the conditions that were set down in the case of Giella v Cassman Brown (1973) EA 358 in order to obtain preservatory orders, which are similar to injunctive orders. Counsel stated that the applicant has not met the standards set therein and further, that the balance of convenience titles against the applicant. He prayed the court dismiss the application with costs to the respondents. Analysis & Determination 21. On the issue of whether the court should grant the leave sought, the court is guided by the decision of the Court of Appeal in the case of Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another [2014 eKLR the court made the following observations as regards filing of appeals in Succession matters against the decisions of the High Court in the exercise of its original jurisdiction: “ We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of the High Court or where the application for leave is refused, with leave of this court. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merits serious consideration. We think this is good practice that ought to be https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19085/eng@2025-11-13 4

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retained in order to promote finality and expedition in the determination of probate and administration disputes.” 22. On the submission that the issue of whether the prayer by the Applicant that the court reinstates the interim freezing orders granted on 29th July 2024 and lifted by tis court by its Ruling delivered on 18th December 2024 is res judicata, the court observes that the principles on res judicata are set out in section 7 of the Civil Procedure Act 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 can 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.” 23. The principle was well explained in the case of the Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Nairobi CA Civil Appeal No. 105 of 2017 ([2017] eKLR) in which the Court of Appeal held that: “ Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms; 24. 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.” In light of the above, it is my very well considered opinion that since the Applicant herein is not seeking that the court stays its Ruling as is, as rendered on 18th December 2024, but seeks that the court revisits its determination and renders a completely different one, then it is my finding that the doctrine of res judicata as herein explained is not only relevant but is also applicable. Further, the court is also now functus officio having rendered itself on the merits of the cause in its Ruling delivered on 18th December 2024. This being the case then, the court as sought by the Applicant, will not issue any preservatory orders in this matter at this juncture. However, the leave to appeal is allowed. READ DATED AND SIGNED AT ELDORET ON 13TH NOVEMBER 2025 E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19085/eng@2025-11-13 5

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