Vincent Erique Omondi v Penina Adhiambo Ongiri (Suing as the Administrator of the Estate of Joseph Ongiri Atito, Deceased), Florence Oborah & others

Order 42 rule 13(4) places on the appellant the duty of furnishing the documents relevant to the appeal; the ruling appealed from is indispensable. Without it there is nothing to examine and the appeal would ordinarily be struck out. However, Article 159(2)(d) requires justice without undue regard to procedural technicalities, and since the ruling was available on the original court file, the court perused it and proceeded on the substance.

The relief sought was a stay of proceedings pending the objection in the succession cause. The suit had ended in judgment and decree, so nothing remained to stay. The appellant had also had his opportunity to protect his position - his motion for a stay pending appeal was dismissed by Asati J. on 13th March 2025, he did not seek review or appeal, and instead took full part in the trial. He elected to litigate the merits and cannot now challenge the resumption of the trial.

The motion of 20th June 2024 sought the same stay pending the same objection and was determined on 10th July 2024; the 15th August 2024 motion, filed by the same firm, sought the same relief on the same ground. Re-agitating a determined question by a fresh application is an abuse of process. Once found res judicata, the application fell to be dismissed in limine without determining the stay discretion.

Section 6 targets a previously instituted suit between the same parties in which the matter in issue is directly and substantially in issue. The succession cause concerns administration and distribution of the estate; the ELC suit concerns the validity of the titles. The 2nd and 3rd respondents are not parties to the succession cause, so the question of a stay was discretionary, not one of right.

Section 79 vests the estate in the personal representative upon the grant and section 82 confers the powers; a grant is valid for all purposes until revoked or annulled under section 76 by the court that made it. The contrary rule would allow any beneficiary to disable an administrator from protecting estate property by the simple expedient of filing an objection. Morjaria v Abdalla supports this.

No evidence was taken on 20th or 26th August 2024; the ruling proceeded on a preliminary objection. Submissions on bona fide purchase, section 26 of the Land Registration Act and adverse possession address the merits and were not before the magistrate. Adverse possession was neither pleaded nor available to a claim founded on purchase and registration. The bias allegation was a makeweight and was deprecated.