Kenneth Mwaura Njoroge v Ruth Wanjiru Njoroge & 3 others

3. This Honorable Court be pleased to issue an Order compelling the 2nd Respondent to furnish the Applicant/2nd Co-Administrator herein with a copy of his Notification of Birth. 4. This Honourable Court be pleased to issue an Order compelling the Respondents to furnish the Applicant/2nd Co-Administrator herein with a copy of the Adoption Order that made the 2nd Respondent a son to Samuel Njoroge Muiruri (Deceased); 5. Costs of this Application be provided for. 3. The application is based on the grounds thereof and supported by affidavit sworn by Kenneth Mwaura Njoroge on 30th July, 2025 who avers that he is duly seized of the facts and has initiated procedural steps to obtain critical documents necessary for the fair determination of this succession dispute. 4. That he formally issued a Notice to Produce dated 20th June, 2025, seeking disclosure of key documents, including the 2nd Respondent’s birth notification, proof of the 1st Respondent’s marriage to the deceased and the adoption order relating to the 2nd Respondent. 5. It is further deponed that despite the issuance and service of the Notice to Produce, the 1st Respondent, through counsel, declined or failed to furnish the requested documents, as evidenced by annexed email communication indicating a dismissive response. This refusal is framed as necessitating the intervention of the Court through the present application. He reiterates that the orders sought are intended to enable him to adequately prepare for the hearing, support his earlier Chamber Summons application dated 26th June, 2023 and assist the Court in resolving the substantive dispute. 6. The 1st Respondent’s affidavit is fundamentally defective and unreliable because it is premised on falsehoods, inconsistencies and material misrepresentations intended to mislead the Court. The Respondent knowingly relied on impugned documents, presenting a narrative in which the annexures collectively seek to undermine the credibility of the Respondent’s claims. His request for information is grounded in constitutional rights to access information and the refusal or failure to supply the requested documents necessitates judicial intervention. 7. He reiterates that the orders sought are necessary to enable the Court to determine the real issues in controversy and to allow him to adequately prosecute his case. He asserts that the Respondents will suffer no prejudice from disclosure, while emphasizing that the annexed materials, ranging from court rulings and affidavits to documentary exhibits, demonstrate both prior attempts to obtain the information and the centrality of the disputed documents to the resolution of the succession dispute. 8. The application is opposed vide replying affidavit sworn by Ruth Wanjiru Njoroge on 4th September, 2025. She avers inter alia that she swears the replying affidavit on behalf of herself and the 2nd Respondent. 9. She depones that the grant of letters of administration issued on 29th November, 2022 to herself and the Applicant was by consent of both parties, was never challenged or appealed and therefore remains valid. 10. She contends that the present application is defective, misconceived and an abuse of the court process, as it seeks to reopen issues that have already been conclusively determined. She further states that the estate had previously been administered through joint letters of administration issued in 2004 to representatives of both houses of the deceased and that the Applicant’s current application disregards that historical framework. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5513/eng@2026-04-30 2

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11. In addition, she relies on a judgment delivered on 10th February, 2009, annexed to the affidavit, in which the court recognized Jeff Njuguna Njoroge as a child of the deceased, noting that he bore the deceased’s name and had been issued with a notification of birth identifying the deceased as his father. She avers that this determination settled the issue of his status and inclusion as a beneficiary, rendering the Applicant’s attempt to challenge the same untenable. 12. The Respondent also deposes that the Applicant has engaged in repeated and vexatious litigation, including filing multiple applications intended to frustrate the confirmation and distribution of the estate. She asserts that the Applicant has deliberately delayed the conclusion of the succession process and urges the court to proceed expeditiously with confirmation of grant and distribution of the estate assets. 13. In this regard, she characterizes the application dated 30th July, 2025 as incompetent and incurably defective, lacking legal foundation and designed to obstruct the administration of the estate. In support of her position, she annexes documentary evidence including the grant of letters of administration, a consent between the parties appointing co-administrators and the earlier court judgment, all of which are presented as demonstrating that the issues raised by the Applicant have already been addressed 14. The application dated 29th September, 2025 filed by the Applicant, Kenneth Mwaura Njoroge, seeks for ORDERS THAT: 1. The Honorable Court be pleased to grant leave to the Applicant/2nd Co-Administrator to file his Application for Review dated 29th September, 2025 to review the Judgment of the Honorable Lady Justice Jeane Gacheche Judge (as she was then) delivered on 10th February, 2009 out of time. 2. The Application for Review dated 29th September, 2025 be deemed as filed and issued upon the payment of the requisite Court filing fees. 3. Any further orders and directions to issue as this Honorable Court may deem fit in the circumstances. 4. Costs be in the cause. 15. The application is supported by affidavits sworn by Kenneth Mwaura Njoroge on 29th September, 2025, 11th November, 2025 and 10th May, 2022. 16. He avers inter alia that the impugned judgment was founded on an affidavit of marriage allegedly sworn in 1981, which he contends was irregularly commissioned and therefore unreliable. He asserts that both the 1st Respondent and her advocates were aware of earlier judicial findings declaring that affidavit invalid but failed to disclose the same to the Court, thereby infiuencing the outcome of the judgment. The annexures marked in support, comprising earlier rulings, affidavits, and related correspondence, are presented as demonstrating contradictions in the Respondents’ case and highlighting the existence of prior judicial pronouncements that undermine the evidentiary basis relied upon in the 2009 decision. 17. The application is opposed vide grounds of opposition dated 22nd October, 2025. The grounds of opposition are based on the grounds that the application is procedurally defective, legally untenable and an abuse of the court process. 18. The Applicant had previously lodged a notice of appeal in 2009 against the judgment he now seeks to review, thereby precluding him from invoking the review jurisdiction under the Civil Procedure https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5513/eng@2026-04-30 3

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Rules. The judgment delivered on 10th February, 2009 is no longer amenable to review and the present application, having been brought many years later, is incompetent and should be struck out with costs. 19. The issues raised in the application have already been conclusively determined through a consent order and a rectified grant issued in November 2022, which confirmed the status of the administrators and beneficiaries of the estate. The consent order represents a final determination of the matters in dispute and the Applicant has not demonstrated any discovery of new or important evidence that was not within his knowledge or could not have been produced earlier. The absence of such disclosure renders the application legally unsustainable. 20. Further that this court lacks jurisdiction to revisit or overturn the findings and final decision rendered in 2009, particularly in light of the fact that the judgment was subject to appellate processes and has remained binding. The Respondents rely on extracts of the judgment to emphasize that the court made definitive findings regarding the marital status of the parties and the identification of beneficiaries, including recognition of the 1st Respondent as a wife of the deceased. These findings, they argue, remain conclusive and cannot be reopened through the present proceedings. 21. Additionally, they contend that the Applicant has engaged in repeated and vexatious litigation, filing multiple applications that have delayed the administration and distribution of the estate. They characterize the current application as part of a pattern of conduct intended to frustrate the finalization of the succession cause, particularly in light of ongoing proceedings for confirmation of grant. The application is therefore described as an unnecessary diversion and a waste of judicial time and resources. 22. In conclusion, the Respondents urge the court to dismiss the application in its entirety, arguing that it is contrary to the final directions issued in the succession cause, lacks merit and constitutes an abuse of process. They seek that it be struck out with costs, maintaining that the administration of the estate should proceed without further delay. 23. The parties have not filed written submissions to both applications. Analysis And Determination 24. I have read the applications before this court and the responses thereto. 25. The substantive legal issue that runs across the two applications is whether the principle of res judicata has been breached by the Applicant as well as the principles governing review applications. 26. The principle of res judicata was well articulated in John Florence Maritime Services Limited & Another V Cabinet Secretary For Transport And Infrastructure & 3 Others [2021] EKLR where the court stated: “ 81. We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata 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. (82) If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5513/eng@2026-04-30 4

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litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other. (86) 27. We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated: a) There is a former Judgment or order which was final; b) The Judgment or order was on merit; c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d) There must be between the first and the second action identical parties, subject matter and cause of action.” In Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR, the court cited, with authority, Uhuru Highway Development Ltd – Vs – Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni where the court in an earlier Application, ruled that “…the Application before it was Res Judicata as the issue of injunction had been twice rejected both by the High Court and the Court of Appeal on merits and that the Ruling by the High Court had not been appealed against. The court further emphasized that the same Application having been finally determined “thrice by the High Court and twice by the Court of Appeal”, it could not be resuscitated by another Application...” The Court of Appeal further stated that: “That is to say, there must be an end to Applications of similar nature, that is to further, under principles of Res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be mandated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation. It is this precise problem that Section 89 of or Civil Procedure Act caters for.” 28. In Asanyo & 3 others v Attorney-General [2020] KESC 62 (KLR) the court pronounced itself as follows: “… 38. We turn now to the standing of the consent filed by the parties before the appellate court. The pertinent question is: When does a consent by the parties transmute into an order of the court? What is the role of the court in the adoption of the consent? 39. In this court’s order of November 20, 2018, we directed that the appellate court do adopt the consent of the parties. 40. Adoption of a consent by a court is a process, in the course of which a court discharges the duty of evaluating the clarity of the consent placed before it by parties, and giving directions on the manner of adoption. This circumvents the risk of an unlawful order, and validates the mode of adoption and compliance. Thus, a consent by parties becomes an Order of the Court only once it has been formally adopted by the court. It is only from that stage, that the court becomes functus officio. this court having ruled that the judgment of the Court of Appeal (dated November 13, 2015) was a nullity; and that Court having not formally adopted the consent by parties, was not yet functus officio. 41. It follows, as we find, that the appellate court, in directing the parties, on January 22, 2019 to make formal application, was validly engaged in the judicial process attendant upon the consent-adoption process, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5513/eng@2026-04-30 5

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entirely in line with the orders emanating from this court. 42. From this standpoint, it is evident to us that the appellate court is at this stage engaged in the lawful exercise of its jurisdiction. It is under obligation to proceed on that basis; and so, this court will not encroach on such a legitimate exercise of judicial remit…” 29. In Bakari v Bacchus Grocers Limited [2026] KEELRC 877 (KLR) the court stated as follows: “… 7. The instant application is premised on Rule 12 and 18 of the Court Rules. Rule 12 allows a party 30 days to file an appeal against the trial court judgment or ruling. Where no appeal is filed in time, under Rule 18 of the Court Rules, a party may move the court for extension of time: 18. The Court may, if circumstances justify, extend th e t i m e prescribed for the filing of an appeal or any document relating to an appeal. This Rule is akin to Section 95 of the Civil Procedure Act that requires that: 95. Enlargement of time Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. 8. In this case, the trial court delivered judgment on 10 December 2025. 3 days to file an appeal lapsed on 11 February 2026 in view f tabulation of time under Order 50 rule 4 of the Civil Procedure Rules, which stipulates: “Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the Court) for the amending, delivering or filing of any pleadings or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction. 9. In this case, when the Applicant filed the instant application, he was still within time to file an appeal. However, under the mistaken belief that time stopped running after the expiry of 30 calendar days, including days removed under the Rule, he has filed this application with caution. It was unnecessary at the time. With it, he lost crucial time to file his appeal in time. See Onchwari v Kan Travellers [2025] KEHC 19197 (KLR) and Mutoro v Obala [2025] KEHC 19055 (KLR). 10.Taking the above into account, the time to file an appeal is extended by only 14 days. The Applicant shall further serve the Record of Appeal within the same time as he has had the benefit of time to organise himself in this regard. The Applicant will also meet the costs due to the Respondent…” 30. The application dated 30th July, 2025 seeks coercive orders compelling the Respondents to produce documents relating to proof of marriage, birth and adoption, ostensibly to enable proper determination of the succession dispute. 31. While such orders ordinarily fall within this court’s procedural powers to facilitate fair trial and disclosure, the context of this case is determinative. The record demonstrates that the status of the 1st Respondent as a spouse and the 2nd Respondent as a beneficiary had already been addressed in the judgment delivered on 10th February, 2009 and further crystallized through the consent and rectified grant issued on 29th November, 2022. 32. The legal effect of those determinations is that the issues of marriage and filiation are no longer open for re-litigation. Under the doctrine of res judicata, a party is barred from reintroducing matters that were directly and substantially in issue in former proceedings between the same parties and determined by a competent court. 33. The Applicant’s request for production of documents is not a neutral evidentiary step, it is inextricably linked to an attempt to reopen those settled issues. The annexures relied upon by the Applicant do not disclose a new controversy distinct from the earlier findings but rather seek to undermine them indirectly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5513/eng@2026-04-30 6

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34. Further, the consent order adopted by the court in 2022 has the force of a judgment. In the absence of demonstrated fraud, mistake or illegality, such a consent is binding and renders the court functus officio on the matters settled therein. The Applicant has not laid a sufficient legal basis to impeach that consent. Consequently, the application amounts to an abuse of the court process, as it seeks to circumvent the finality of prior determinations under the guise of discovery. 35. The application dated 29th September, 2025 seeks leave to file a review of the judgment of 10th February, 2009 out of time. The applicable legal framework is Order 45 of the Civil Procedure Rules, which limits review to instances of discovery of new and important evidence, error apparent on the face of the record, or other sufficient reason and requires that the application be made without unreasonable delay. Additionally, review is unavailable where an appeal has been preferred. 36. The material on record shows that the Applicant had filed a notice of appeal in respect of the 2009 judgment. This election of the appellate process disentitles him from pursuing review, as the two remedies are mutually exclusive. 37. Moreover, the delay of approximately sixteen years is inordinate and remains unexplained, thereby offending the requirement that review be sought without undue delay. 38. On substance, the Applicant’s case is premised on alleged irregularities in the affidavit of marriage relied upon in the 2009 judgment and the purported non-disclosure of earlier findings. However, the annexures relied upon consist largely of historical documents, prior rulings and materials that were either available or could, with due diligence, have been obtained at the time of the original proceedings. They do not meet the threshold of new and important evidence. Rather, they amount to a re-evaluation of evidence already considered by the court, which falls outside the scope of review. 39. Further, the 2009 judgment constitutes a final determination on the issues of marital status and beneficiary entitlement, rendered by a court of competent jurisdiction. The attempt to reopen it, particularly in light of subsequent consent orders and ongoing administration proceedings, offends both the doctrine of res judicata and the principle of finality in litigation. There must be an end to litigation, including repeated interlocutory applications seeking to revisit settled matters. 40. In light of the foregoing, I hold that both applications dated 30th July, 2025 and 29th September, 2025 are hereby dismissed for being incompetent, time-barred and an abuse of the court process. 41. Each party to bear its costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 30TH DAY OF APRIL 2026. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5513/eng@2026-04-30 7

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