Sospeter Odero Laja v Roda Ochieng Ogalo

The defendant filed an objection dated 23 rd December 2021 in the succession cause, challenging the Grant issued to the plaintiff on the ground that it was obtained fraudulently by making false statements and concealing material facts. The defendant averred that she was the deceased's daughter and therefore a beneficiary of his estate. The defendant averred that the plaintiff had no relationship with the deceased. The succession court considered the defendant’s objection and allowed it in a ruling dated 19th July 2022. The court found that the defendant was the deceased's daughter and the only surviving beneficiary of his estate entitled to a Grant of Letters of Administration. The court further found that, after the defendant's marriage, the plaintiff, the deceased's nephew, assisted him in his old age. The court revoked the Grant of Letters of Administration in respect of the estate of the deceased granted to the plaintiff but ordered that in consideration of the assistance given to the deceased by the plaintiff, the plaintiff should be given a portion of the suit property measuring approximately one (1) acre. The plaintiff was dissatisfied with the decision of the succession court and appealed to the High Court at Kisumu in High Court ELC NO. E038 OF 2024 RULING Page 2

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Succession Appeal No. E006 of 2022(succession appeal). The appellant’s appeal was dismissed by the High Court on 4 th April 2024. The High Court upheld the ruling of the succession court and ordered that the suit property transferred to the plaintiff reverts to the name of the deceased to be administered as directed by the succession court. Still dissatisfied with the outcome, the plaintiff brought this suit against the defendant on 20th December 2024, seeking: a declaration that he has a beneficial interest in the suit property and is therefore entitled to it; a declaration that the title to the suit property held by the defendant was acquired fraudulently; general damages for fraud and trespass; a declaration that he has acquired prescriptive rights over the suit property; an order of eviction of the defendant; and a permanent injunction restraining the defendant from remaining on, occupying, continuing to occupy, selling, or in any other manner interfering with the suit property. In his plaint dated 10th December 2024, the plaintiff, while acknowledging that the Grant issued to him in respect of the estate of the deceased was revoked and another Grant issued ELC NO. E038 OF 2024 RULING Page 3

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to the defendant and confirmed, contended that the Grant issued to the defendant was fraudulent as the defendant was not a daughter of the deceased. The plaintiff further averred that the defendant caused the suit property to be transferred to her name using an illegally acquired Grant of Letters of Administration; that the defendant’s right to claim the property had become extinguished by effluxion of time, the plaintiff having occupied the suit property for over 24 years; and that the defendant was a trespasser on the suit property. What is now before me is the defendant’s application dated 25 th September 2025 seeking an order that the plaintiff’s suit be struck out and dismissed with costs. The application, brought under sections 7 and 8 of the Civil Procedure Act and supported by the defendant's affidavit sworn on 25th September 2025, rested on several grounds. The defendant contended that the plaintiff had no legal capacity to institute the suit; that the suit offended the provisions of section 18(2) of the Law of Succession Act; that the suit was res judicata, as the issues raised for determination had been raised in the previous proceedings between the parties, namely, Nyando Succession Cause No. E163 of 2021 and Kisumu High Court Succession ELC NO. E038 OF 2024 RULING Page 4

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Appeal No. E006 of 2022; that the plaintiff was guilty of nondisclosure of material facts; and that the suit was scandalous, frivolous, vexatious and amounted to an abuse of the process of the court. The plaintiff did not file an affidavit in response to the application. The application was heard on 12 th November 2025. In his submissions in support of the application, the defendant’s advocate reiterated the contents of the defendant’s affidavit in support of the application. The defendant submitted that the succession court determined ownership of the suit property, and the High Court upheld that decision on appeal. The defendant submitted that the suit was bad in law and that litigation must come to an end. The plaintiff filed written submissions dated 10 th November 2025 and also made oral submissions. The plaintiff submitted that the issue before the court concerned the plaintiff's adverse possession of the suit property and had nothing to do with the succession proceedings or the administration of the deceased's estate. The plaintiff submitted that the doctrine of res judicata was inapplicable in the circumstances. ELC NO. E038 OF 2024 RULING Page 5

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In a rejoinder, the defendant invited the court to look at the prayers in the plaint and submitted that the plaintiff’s suit was not an adverse possession claim. The defendant submitted that the plaintiff and the defendant were both given portions of the deceased’s land and, as such, the issue of adverse possession could not arise. I have considered the defendant’s application and the submissions of counsel. The application, in my view, raised only one issue for determination, namely, whether the suit is res judicata and, as such, frivolous, vexatious, and an abuse of the process of the court. After reviewing all the material before me, I have concluded that the issue concerning the ownership of the suit property is res judicata and, as such, this Court cannot try and determine it again. The plaintiff petitioned for a Grant of Letters of Administration in respect of the estate of the deceased on the ground that he was a nephew of the deceased, and the sole beneficiary of his estate which consisted of the suit property. The plaintiff claimed that the deceased had given him the suit property as a gift during his lifetime. The plaintiff was issued a Grant of Letters of Administration, on the strength of which he transferred the suit ELC NO. E038 OF 2024 RULING Page 6

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property into his name. The Grant of Letters of Administration issued to the plaintiff was short-lived. The succession court revoked it on 19th July 2022 on the defendant's objection. During the objection proceedings, the plaintiff maintained that he was the sole beneficiary of the deceased's estate and the one entitled to inherit the suit property. In its ruling, the succession court acknowledged and appreciated the assistance the plaintiff provided to the deceased. The court ordered that the plaintiff be given a portion of the suit property measuring one (1) acre, with the defendant keeping the rest. I agree with the defendant that the succession court did not only deal with the revocation of the grant but also directed how the parties were to share the suit property. The High Court upheld the succession court's decision on appeal, meaning the plaintiff was to receive a portion of the suit property measuring 1 acre, with the defendant retaining the remainder. In the circumstances, I agree with the defendant that the issue of legality of the defendant’s title to the suit property was settled by the High Court, whose decision has not been appealed. The issue of the defendant having acquired the suit property fraudulently or the plaintiff acquiring the property by adverse ELC NO. E038 OF 2024 RULING Page 7

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possession does not therefore arise. In any event, the issue that the plaintiff acquired the suit property by adverse possession was not raised in the succession court or before the High Court. I wonder whether it would have been determined in his favour, given that he claimed the suit property was given to him by the deceased as a gift. Section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya provides as follows: “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 their 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 determined by such court.” Explanation 4 to section 7 of the Civil Procedure Act aforesaid provides that: “Any matter which might and ought to have been made a 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.” ELC NO. E038 OF 2024 RULING Page 8

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In the case of Uhuru Highway Development Ltd. v. Central Bank of Kenya & Others CA No. 36 of 1996 (unreported), the court stated that: “The Plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce judgment, but every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” In E.T v. Attorney General & Another [2012] eKLR , the court stated that: “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 ELC NO. E038 OF 2024 RULING Page 9

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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…”” For the foregoing reasons, it is my finding that the plaintiff’s suit is res judicata and as such cannot be entertained by this court. The doctrine of res judicata underscores an important public policy requirement: litigation must have an end. The suit, being one raising issues that courts of competent jurisdiction have conclusively determined, is frivolous, vexatious, and amounts to an abuse of the process of the court. If the Appellant felt that the succession court and the High Court had no jurisdiction to determine in succession proceedings the ownership of the suit property, his recourse was to appeal the decision of the High Court, which upheld the succession court ruling, to the Court of Appeal. This court has no jurisdiction to overturn or review a High Court decision, even if in its view it is wrong. ELC NO. E038 OF 2024 RULING Page 10

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In conclusion, the Notice of Motion application dated 25 th September 2025 is allowed. The plaint dated 10th December 2024 is struck out and the suit dismissed with costs to the defendant. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this 28th day of September 2026 E.K.WABWOTO JUDGE Ruling delivered virtually through Microsoft Teams Video Platform in the presence of: Mr. Awonda h/b for Mr. Mwamu SC for the Applicant N/A for the Respondent. Joanne Omondi -Court Assistant ELC NO. E038 OF 2024 RULING Page 11

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