Ogega Onyiego Marimbu v Gabriel Onyiego Marimbu & 1 other

3. d. For demand of justice, may the notice to show cause take its cause. e. The Honorable court sure compliance to the ruling of Justice Ougo so the applicant receive his beneficiary/other associates benefit of the right to protect the property as per article 40 of the constitution. f. Cost of this application be provided for. The application is based on the grounds that: a. The administrators and interested party intentionally ignored the honorable court direction as per paragraph 24 of the ruling. b. Notice to show cause be honored and allowed for the sake of equitable justice. c. The administrators and interested party intentionally entered succession secretly so the applicant to end to become internally displaced person in his father’s land. d. With several circumstances, this application is befitting of injustice, orders against the administrators and interested party hence notice to show cause be honored and allowed. 4. In his supporting affidavit, the applicant herein averred that he is the sole beneficiary of the estate of the deceased. He decries that the administers together with the interested party who is a purchaser, secretly and dubiously filed succession cause herein and rendered him an internally displaced person in his father’s land. Also, that he is being denied his beneficiary constitutional right and bill of rights and fundamental freedoms. He further contends that after discovery of all the ill motive of bad faith, he moved to this court where the court directed on inventory and accounts hence applicant to be at liberty to move to court appropriately for other orders or further orders arising from the said ruling, hence no orders as to costs. 5. He further avers that the administrators and interested party intentionally ignored, overlooked and rubbished the honorable courts directions. He prays that this honorable court allow the notice to show cause, so to grant orders against the administrators and the interested party on contempt, a crime on misdemeanor against penal code section 77 and costs/interest on court rate. He decries to the court that justice demands that an injunction order should issue stay/set aside/ quash away and cancellation of title deeds of the administrators and interested party and that it is in the interest of justice and peaceful co-existence that said orders be granted. Grounds of opposition 6. The 1st co-administrator and the interested party opposed the notice of motion dated 16th October 2024 on the grounds that: a. The motion is premature, mischievous, misconceived and otherwise bad in law and that the applicant has not shown or established sufficient cause and/or basis to warrant the various orders being sought whatsoever and howsoever. b. The issues herein had been raised vide application 25th March 2015 and 16th October 2023, which sought for revocation of grant which applications were determined on the 31st October 2022 and 9th July 2024. And so, the instant application is a replica of issues raised in the former application hence same is Res-judicata. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19793/eng@2025-07-03 2

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c. The Honourable court has no jurisdiction to here and determine the instant application as same is functus officio having pronounced itself on the issues being raised on the ruling rendered in 31st October 2022 and the court orders made on the 9th July 2024. d. The succession cause herein has been completed with the administrators being directed to render an account pursuant to section 83(g) of the law of succession act, chapter 160 laws of Kenya which directions were fully complied with by the lodging of the inventory and accounts in court on the 5th December 2022. e. The applicant herein has not moved the court on the basis of the inventory and accounts lodged in court as directed by the honorable court and has sort for an order revoking the grant albeit disguised in order to quash, set aside and/or stay the instant probate proceedings. f. The distribution of the estate was done pursuant to an application and the administrators herein together with the entire beneficiaries of the deceased referring the matter to arbitration over the matter which award was adopted as the mode of distribution by the parties and certificate of confirmation issued on the 18th day of April 2002. Issues and Determination 7. Having considered the application and the grounds herein and the grounds of opposition by the 1st administrator and the interested party, the issues for determination are: a. Whether the application herein is resjudicata b. What is the recourse of the applicant if any? Analysis 8. On the issue of resjudicata, Section 7 of the Civil Procedure Act provides that: 7. Res judicata 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 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. Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19793/eng@2025-07-03 3

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Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 9. In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus; “This court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata: "Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment. In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.54.The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.56.The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” The essence of the res judicata doctrine is further explicated by Wigram, VC in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19793/eng@2025-07-03 4

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been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].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. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, (2012) eKLR, thus: The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata.” 10. The issues raised in the notice of motion dated 16th October 2024 are similar to the issues which were raised in the application dated 16th October 2023 and 25th March 2015. The court determined these very issues in the ruling dated 31st October 2022, in which the question of whether the grant of letters of administration could be revoked and whether the titles could be reverted back to the deceased’s name was addressed. There was no appeal against the said rulings and so they still stand. The applicant and the respondents were parties to the said application and the same were finally determined by Hon. Justice Ougo. The application dated 16.10.24 is thus res judicata. 11. On the recourse of the applicant, In the ruling dated 31st October 2022 Justice Ougo directed that: “the two administrators to file a full and accurate inventory of the assets and liabilities of the estate and an account of their handling of the estate of the deceased in keeping with section 83 of the Law of Succession Act within 60 days from the date of this Ruling. Upon the filing of the aforementioned inventory and accounts, the Applicant will be at liberty to move the court appropriately for other or further orders arising from the said account.” The inventory and accounts of the said parcel of land was lodged in court on 5th December 2022. The applicant ought to have moved the court on matters arising from the inventory and accounts and not on issues that had been dealt with before in the ruling dated 31st October 2022 in this court. 12. This matter is hereby dismissed on the ground that it is res judicata. 13. The applicant should not file any other application without leave of the court. 14. Each party to bear it’s own costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19793/eng@2025-07-03 5

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T.A ODERA JUDGE 3.7.25 Delivered Virtually Via Teams Platform in the presence of: Miss Ochwal for the 1st Co-administrator and the Interested Party The Applicant – Absent N/A for Respondents Court Assistant- Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19793/eng@2025-07-03 6

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