Koi v Ndago

7. That the costs of this application be provided for. 2. The Application is based on grounds that this Honourable court made a determination identifying heirs of the estate of the deceased and issued consequential orders aecting distribution and vesting of the estate. The Applicant asserts that the said determination was made without full disclosure of material facts and without inclusion, notice or participation of all lawful beneciaries of the estate of the deceased. The Applicant states that several close relatives of the deceased including brothers, nephews and nieces were not disclosed and were not given an opportunity to be heard in the proceedings. He contends that the Court acted on incomplete and misleading foundational documents including an Assistant’s chief letter dated 10th January, 2020 which we did not reect the full and true family structure of the deceased. 3. The foregoing is the gist of the supporting adavit sworn by the Applicant in support of the motion which adavit also contains a narration of the background of the matter. 4. To cement his case the Applicant attached hereto copy of certicate of death Mohamed Masudi Dago, family tree, letter dated 31st December, 2019 from the County Civil Registrar, Kwale conrming the death of Mohamed Masudi Ndago, Orders issued by Kwale Kadhi’s Court on the 27th January, 2020, letter dated 10th January, 2020 from the assistant chief, copy of the Judgment delivered on the 27th January, 2020. 5. In opposition the Respondent opposed the application and by doing so led a Notice of preliminary objection on a point of law stating that the application is Res Judicata. He stated that the application oends Section 6 and 7 of the Civil Procedure Act. He further stated that the Applicant had a led an ELC suit No. E02 of 2020 and it was dismissed. 6. The Respondent together with the Notice of Preliminary Objection, he led a replying adavit sworn on the 14th August, 2026. In his Adavit he stated that the application is Res Judicate which was determined in suit No. E02 OF 2020 at Msambweni Magistrate Court. He stated that the succession was fully determined after following the due process of the law. 7. To give weight to his defense the Respondent attached copy of the Judgment of the ELC suit No. E02 of 2020 at the Principal Magistrate Court at Msambweni and the Judgment and orders of the Kwale Kadhis Court issued on the 27th January, 2020. 8. The instant application was conversed by way of oral submission. Those of the Applicant were orally submitted by the learned counsel Mr. Omariba from the rm of Walela & Omariba Advocates on the 24th of August 2026, whilst those of the Respondent were orally submitted by Hamadi Omar Koi on the same date. 9. I have carefully considered the Application, Notice of Preliminary objection, the Replying Adavit, and the oral submissions together with the authorities relied upon by the parties and this Honourable Court frames the following as issues for determination: 1. Whether the instant application is Res Judicata 2. Whether this Honourable court should set aside, vacate and/or vary the Judgment and the Orders issued on the 27th January, 2020. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/19/eng@2026-09-03 2

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10. It is now established that the proper practice is to determine the Preliminary Objection rst especially where such preliminary Objection touches jurisdiction of the court. The case of Mukisa Biscuits Manufacturing Co. Ltd vs West end Distributors Ltd (1969) EA 696 delineated that Per Law JA that: “ a Preliminary Objection consists of a point of law which has been pleaded or by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.” 11. In relation to jurisdiction, I believe that courts must ensure they have jurisdiction in the matter before them. It is everything. A matter heard and determination made by a court lacking jurisdiction is a nullity. 12. In the instant matter the Respondent hold the position that the Application is Res Judicata, claiming that the current prayers are the same prayers which were determined in suit No. ELC E02 of 2020 and the parties are the same. 13. It is the position of the Applicant that the prayers sought court in the previous application are dierent from the current one. Furthermore, the court stated in dismissing the previous application that the applicant has sought the court to determine an issue which was not in existence. The Applicant also hold that the prayers sought in the ELC suit No. E02 of 2020 at the Principal Magistrate Court at Msambweni are totally dierent from the prayers sought in this current application. 14. As to the issue as to whether this matter is Res Judicata, this Honourable court wishes to refer to the provision of the law relating to the said principle. Section 7 of the Civil Procedure Rule provides that: a. The suit or issue was directly and substantially in issue in the former suit. b. The former suit was between the same parties, c. Those parties were litigating under the same title, d. The court that formerly heard and determined the suit was competent to try the subsequence suit. 15. I have considered the application, the Notice of Preliminary of Objection, replying adavit and the oral submissions of the parties herein in this regard, for me to make a nding that this matter is Resjudicata, it is important that I look at the previous Judgement issued at the Principal Magistrate Court at Msambweni delivered on the 20th September, 2024, the Ruling delivered by this Court on the 30th of April, 2026, and the current prayers in the Applicant’s application, the orders issued which the parties herein are acknowledging. 16. From the glimpse reading of the prayers sought in the instant application, the issues therein are not directly substantially the same as what the parties herein are conversing. Looking at the current pleadings almost all the prayers sought are dierent from the prayers sought in the previous applications and the Judgment delivered by the Magistrate court struck out the matter. This means the matter was not determined on merit wherefore, the issue of Res Judicata doesn’t come in. The parties herein are the same in the previous application and partly the same in the proceedings before the Magistrate court. 17. At this point it is obvious that the Respondent failed to present factual proof and in that basis this point is not proven. I am hereby found that this matter is not Res-Judicata and the Preliminary Objection is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/19/eng@2026-09-03 3

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18. It is a settled law that a person who approaches a court or a tribunal for a grant of a relief equitable or otherwise is under a solemn obligation to candidly disclose all the materials/important facts/ documents which have a bearing on the adjudication of the issues raised in the case. In other words, he or she owes a duty to the court to bring all the facts and refrain from concealing/suppressing any material facts within his or her knowledge which he or she could have known by exercising diligence expected of a person of ordinary prudence. 19. In R vs. Kensington income tax commissioner the court held that; if a party is found guilty of concealment of material facts or making an attempt to pollute pure stream of justice the court not only have the right but a duty to deny relief to that person. 20. The upshot is that the Petitioner/Respondent herein is guilt of material non-disclosure. Whether this Honourable court should set aside the Judgment and the Orders issued on the 27th January, 2020. 21. Courts have the discretionary power to set aside ex parte judgment with the main aim being that justice should prevail. The Code of Civil Procedure (2) has illuminated the grounds for setting aside an ex parte decree and what constitute sucient cause for setting aside an ex parte judgment/decree. Essentially, setting aside an ex parte judgement is a matter of the discretion of the court. 22. In the case of Esther Wamaitha Njihia & two others vs. Safaricom Ltd (3) the court citing relevant cases on the issue held inter alia: “ The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel vs. E.A. Cargo Handling Services Ltd. The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice…” 23. The fact that setting aside is a discretion of the court is not disputed. What is contested is whether the Applicant has demonstrated sucient cause to warrant the exercise of the court’s discretion in its favor. The Supreme Court of India in the case of Parimal vs. Veena observed that: “ Sucient cause” is an expression, which has been used in large number or statutes. The meaning of the word “sucient cause” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, the word “sucient” embraces no more than that which provides a platitude which when the act done suces to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man…” 24. To answer the question whether the action is excusable. On this, courts have come up with applicable principles and standards to consider in exercising judicial discretion. 25. Adverting back to the fact of the present case an order for setting aside Judgment, decree and orders is not abstained on demand. The court has to satisfy itself on examination of all the evidence placed before it rstly, that there is indeed concealment of material facts. 26. It is my humble view that the Applicant has oered a candid and frank explanation as to why he wants the orders of 27th January, 2020 be set aside. The Respondent led a succession petition in relation to the estate of the Deceased herein, stating that he and few others are the only heirs of the deceased. The Court heard the succession and delivered a Judgment in which the Petitioner/Respondent was declared the sole heir of the Deceased herein. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/19/eng@2026-09-03 4

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27. The Honourable court is now told substantively that the Applicant and others are brothers, nephews and nieces of the Deceased herein and that they were left out in the succession petition led by the Petitioner and the subsequently left out by the court when the Court was declaring the rightful heirs. 28. Upon my perusal of the records of the court, I did nd that the Petitioner/Respondent moved this Honourable Court vide a Succession petition dated 14th January, 2020, and pleaded specically in para 4 that Hamadi Omari Koi, Halima Omari Mohamed, Mwanasha Omari Koi and Mwanapili Omari Koi are the only ones surviving the Deceased herein. He attached an introduction letter from Vingujini Assistant Chief dated 10th January, 2020 conrming the same. The said letter indicate that the deceased herein left only four dependents and that the Plot No. Kwale/Msa,bweni “A”/1358 was registered under the name of the Deceased herein. 29. The court records show that on the said 27th of January, 2020 the Kadhis court in Kwale substantively dealt with the petition dated 14th January, 2020 and it made a determination on who the rightful heirs are and equally determined and the proceeded to appoint the Petitioner/Respondent as administrator and vested the suit property in the identied heirs. 30. The upshot is that the Applicant herein has convinced the Honourable court that the Petitioner/ Respondent falsely represented himself together with others not in court to the court as the only rightful heirs of the deceased. That the Petitioner/Respondent failed to disclose the existence of the brothers, nephews and nieces of the deceased. Subsequently, the Respondent obtained a Judgment, grant and/or orders dated 27th January, 2020, through concealment of material facts and misrepresentation. The prayer for setting aside the orders is allowed. 31. In my view, the overriding objective of our constitutional and statutory framework on civil procedure is to achieve substantive justice to the litigants. This view is informed by Article 50 of the Constitution of Kenya, which secures the right to a hearing before the court. This is obligated to safeguard that right. 32. Having made the above analysis, the inescapable conclusion that I reach is that the application is merited. I agree that the Applicant raised a valid concern. 33. In view of the above ndings, and such as I believe that the Applicant has satised the court as well convinced it to exercise its judicial discretion of setting aside an ex-parte Judgment and orders. 34. Consequently, I make the following orders in disposing the Notice of Motion Application dated 19th June, 2026. a. That the ex-parte Judgement delivered on the 27th January, 2020 and all other consequential orders are hereby set aside and vacated. b. That this Honourable court is hereby pleased to exercise its judicial discretion and enjoin the Applicant and the others as Respondents and/or interested parties in these proceedings, and the court grant them leave of 14 days to le and serve their responses in respect to the succession petition dated 14th January, 2020, to prove their claims in the Estate of the Deceased herein. c. That the Respondent is at liberty to le further documents and/or adavit in support of his case. d. Each party to bear its own costs. These are the orders of the court. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/19/eng@2026-09-03 5

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DATED, SIGNED AND DELIVERED IN THE OPEN COURT ON THIS 3RD DAY OF SEPTEMBER, 2026. HON. HABIB SALIM VUMBI SENIOR PRINCIPAL KADHI Delivered in the open court in the presence of the following: - Mr. Omariba for the Applicant Respondent ………………………… Mr. Sha Mwahima …. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/19/eng@2026-09-03 6

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