(deceased) Tabitha Mbithe Ndeti v Priscillah Musyawa Mwania Mutheke

consent of the parties, all the foregoing were canvassed together by way of written submissions. 2.The background is this. The Applicant is the first wife of the deceased. The Objector claimed to be a second wife, married to the deceased under Kamba customary law. Following a full hearing of the protests filed against the Applicant's grant, this court delivered its Judgment on 29th July 2024, finding the Applicant to be the sole surviving spouse of the deceased and directing that Joyce Mwikali, Elizabeth Ndanu Mwania (since deceased and survived by a child), Dinah Mwongeli Mwania and Alice Kalekye Mwania undergo DNA testing within ninety days to resolve the question of their paternity. It is not disputed that none of them has, to date, undergone the directed testing. It is also not disputed that the Objector has since filed a Notice of Appeal against that Judgment and avers that she is in the process of lodging the Record of Appeal. 3.Pursuant to the decree, the Applicant filed the Summons for Confirmation of Grant, proposing a mode of distribution that excludes the Objector and the four named children, and has obtained a consent dated 11th November 2025 from the beneficiaries she recognises, to the sale of Mavoko Town Block 3/2403. The Objector opposes both applications, contending that her children remain lawful beneficiaries pending the DNA process, that confirmation ought to await the outcome of her appeal, and that the Applicant has intermeddled with the estate by transferring Mavoko Town Block 3/1059, Mavoko Town Block 3/2448 and SUCC. CAUSE NO. 24 OF 2006 2

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Mavoko Town Block 3/259 into her own name without confirmation of grant or the leave of court, contrary to section 45 of the Law of Succession Act. 4.I deal first with the Preliminary Objection. Counsel for the Applicant urges that this court is functus officio, the beneficiaries having already been determined by the Judgment of 29th July 2024, and relies on Hassan Nyanje Charo v Khatib Mwashetani & 3 others (Civil Application 14 of 2014) [2014] KESC 41 (KLR), in which the Supreme Court, faced with a similar application while a related matter was pending before the Court of Appeal, declined for the sake of good order to entertain it. 5.Functus officio is, however, a narrower doctrine than that submission allows. The Court of Appeal in Telkom Kenya Ltd v Ochanda (Suing on his own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR) held that the doctrine bars a court only from reopening a matter it has already finally decided, a position the Supreme Court had itself taken in Raila Odinga & 2 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) as an expression of the principle of finality. Neither authority supports the proposition that a court seized of a fresh and distinct application, such as a summons for confirmation of grant or an application for leave to sell under section 37 of the Law of Succession Act, has thereby lost jurisdiction. I so find, and hold that this court is not functus officio in respect of either application. SUCC. CAUSE NO. 24 OF 2006 3

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6.I do, however, agree that to the extent the protests seek to reargue whether the Objector was a wife of the deceased, that question is res judicata. The elements of the doctrine, as restated by the Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others (Civil Appeal 105 of 2017) [2017] eKLR , are satisfied here: the same issue, between the same parties litigating in the same capacity, was heard and finally determined by a court of competent jurisdiction in the Judgment of 29th July 2024. I decline to revisit it; the Objector's remedy lies in the appeal she has lodged. The Preliminary Objection therefore succeeds only to that limited extent, and otherwise fails. 7.On confirmation of the grant, the proviso to section 71(2) of the Law of Succession Act provides: Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when confirmed the grant shall specify all such persons and their respective shares. 8.The Judgment of 29th July 2024 did not exclude the three named children outright; in fact order (c) directed a specific evidentiary process precisely because their status required further ascertainment, and that process remains outstanding. 9.More significantly, the Objector's appeal is against the very Judgment that founds the distribution now proposed. To confirm the grant while that appeal is pending would risk destroying its substratum, an outcome the Supreme Court SUCC. CAUSE NO. 24 OF 2006 4

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cautioned against in Board of Governors, Moi High School, Kabarak & another v Bell & 2 others (Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated)) [2013] KESC 12 (KLR), where the Court emphasised the need to preserve the subject matter of litigation so that a successful appeal is not rendered nugatory. I am not persuaded that confirmation ought to proceed at this stage. It is, however, stood over rather than dismissed, and shall be re-listed upon the earlier of the final determination or withdrawal of the intended appeal, or the expiry of sixty days from the date of this ruling without the directed testing having been undertaken. 10.On the allegation of intermeddling, section 45(1) of the Law of Succession Act provides: “Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.” 11.An allegation of this gravity, going as it does to title already said to have passed, cannot rest on bare assertion. The Court of Appeal held in Vijay Morjaria v Nansingh Madhusingh Darbar & another (Civil Appeal 106 of 2000) [2000] Eklr, that an allegation of that character must be specifically pleaded, its particulars stated, and proved, and cannot be left to be inferred from the surrounding facts. No certificate of official search, or instrument of transfer, has SUCC. CAUSE NO. 24 OF 2006 5

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been placed before me to substantiate that the three parcels named have in fact been transferred, nor is there before me a properly constituted application under section 76 of the Law of Succession Act seeking revocation of the grant. I decline, on the material before me, to make a finding of intermeddling or to order revocation of any title, without prejudice to any party's right to bring a properly pleaded and evidenced application in that regard. 12.On the application for leave to sell Mavoko Town Block 3/2403, section 37 of the Law of Succession Act provides: A surviving spouse entitled to a life interest under the provisions of section 35 or 36, with the consent of all co-trustees and all children of full age, or with the consent of the court, may, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance: Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court. 13. However, the grant issued to the applicant on 29 July 2024 is yet to be confirmed. Section 82 (b) (ii) of the Law of Succession Act prohibits the sale of immovable property before confirmation of grant. In this cause there are a number of issues yet to be determined in so far as the identification of those beneficially entitled to the estate are concerned. In my considered view, it would be prejudicial to allow the sale of any part of the estate. 14.In the upshot I make the following orders: SUCC. CAUSE NO. 24 OF 2006 6

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(a) The Preliminary Objection dated 18th September 2025 succeeds only to the extent that the finding that the Objector was not a wife of the deceased shall not be revisited, that issue being res judicata. (b) Confirmation of the grant on the Summons dated 4th April 2025 is declined for the present and stood over, to be re-listed upon the determination or withdrawal of the appeal if any, against the Judgment of 29th July 2024. (c) That the order for DNA be complied with. (d) That leave to sell Mavoko Town Block 3/2403 for purposes of the Administrator’s medical treatment is denied. (e) That the prayer for a finding that the Objector's children are lawful beneficiaries is declined for now as the DNA ordered is yet to be carried out. (f) That the parties shall bear their own costs of these applications, this being a family matter. Orders accordingly. Ruling signed, dated and delivered virtually through Microsoft Teams on this 30th Day of July 2026. E. N. MAINA JUDGE In the presence of: Mr. Kyobika Applicant Ms. Kyule for the Objector/Respondent Court Assistant Miriam SUCC. CAUSE NO. 24 OF 2006 7

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