Automated Summary
Key Facts
Jane Wangari Waiyaki died testate in 1998 leaving a will dated 1993. The executor, Jasper Mwathani Mbaka, received probate in 2005 but died in 2016 before administering the estate. In 2022, the court revoked the executor's grant and appointed joint administrators including Miriam Gathoni Wambaa, Peter Wamagata Waiyaki, Gladys Wangari Irungu, and Ben Githieya Waiyaki. The current application seeks revocation of this 2022 grant and challenges prior court orders regarding property subdivision. The respondents opposed the application on jurisdictional grounds, arguing it constitutes a disguised appeal against decisions in concurrent jurisdictions. The court upheld the preliminary objection, striking out the application as an abuse of process due to prior final rulings and pending appeals in related cases.
Deceased Name
Jane Wangari Waiyaki
Issues
- The court determined whether the Preliminary Objection raised by the Respondents met the threshold for such objections, specifically addressing whether the application sought to challenge decisions of concurrent jurisdictions by way of a disguised appeal. The court concluded that the application was an improper attempt to re-litigate issues already decided and was an abuse of the court process.
- The court assessed the competence of the application to revoke the grant, considering if it was capable of supporting the orders sought. The Respondents argued the application was incompetent, and the court agreed, noting prior rulings had already addressed the key issues.
- The court examined whether the current application constituted an abuse of process by attempting to re-litigate matters already decided in prior rulings (e.g., orders on property distribution and executor appointment) and pending appeals in other courts. The court found the application sought to circumvent existing orders and struck it out.
Date of Death
1998 September 28
Holdings
- The Preliminary Objection dated 17 October 2023 is upheld, and the application for revocation of grant filed on 17 August 2023 is struck out. The court determines that the application constitutes an abuse of process by attempting to re-litigate issues already decided in prior rulings and challenging decisions of courts of concurrent jurisdiction via a disguised appeal. The property in question, Dagoretti/Kinoo/28, was already distributed under earlier confirmed grants, and no appeal was lodged against those decisions.
- The court rules that each party shall bear their own costs for the proceedings related to the Preliminary Objection and the struck-out application.
Remedies
- The application dated 17th August 2023 is struck out.
- The Preliminary Objection dated 17th October 2023 is upheld.
- Each party to bear their own costs.
Will Type
Attested Will
Probate Status
Letters of Administration granted to joint administrators in 2022, application to revoke dismissed in 2025.
Legal Principles
The court applied the principle of Res Judicata to uphold the preliminary objection, determining that the issues in the 17th August 2023 application had already been litigated in a prior ruling (18th October 2022). The court emphasized that re-filing the application constituted an abuse of process, as the matter was already decided and no appeal had been lodged. This principle prevents re-litigation of matters finally adjudicated by a court.
Succession Regime
Common-law testate succession under a written will dated 7th June 1993
Precedent Name
Mukisa Biscuits Manufacturing Company Limited v West End Distributors
Executor Name
- Ben Githieya Waiyaki
- Jasper Mwathani Mbaka
- Miriam Gathoni Wambaa
- Peter Wamagata Waiyaki
- Gladys Wangari Irungu
Executor Appointment
- Appointed as joint administrator in 2022 ruling
- Named in the deceased's will dated 7th June 1993
Judge Name
C. Kendagor
Passage Text
- 14. The Preliminary Objection dated 17th October, 2023 is upheld. The application dated 17th August, 2023 is struck out. Each party to bear own costs.
- DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 25TH DAY OF MARCH, 2025.
- 13. It is thus improper to file another application and have the Court examine the presented issues again... This Court views the present application as an effort to circumvent existing orders that have already been issued and are currently under appeal.
Beneficiary Classes
Child / Issue