Serenade Properties Limited v Nthiwa & 3 others (Sued as Administrators of the Estate of the late John Nthiwa Nzioka (deceassed)) (Environment & Land Case 5 of 2020) [2022] KEELC 3910 (KLR)

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law pleaded or arising clearly from pleadings. Whether the issues in the succession cause were directly and substantially in issue required evidence of the pleadings in that cause, and the alleged order of February 6, 2017 was a factual matter. The sub judice question under section 6 of the Civil Procedure Act should be raised by application supported by affidavit evidence, not preliminary objection.

Jurisdiction is determined by subject matter, not by the capacity in which parties litigate. A claim for ownership of land as against a deceased person's estate does not strip the ELC of jurisdiction merely because an estate is involved. Claims to ownership of alleged estate property as between the estate and a third party should be resolved through civil suit, and any decree presented to the probate court for effect.

The plaintiff produced the grant, sale agreement, Land Control Board consent, transfer documents and title, spending about Kshs 50 million; the disputed issue is whether it is a bonafide purchaser for value without notice. The plaintiff's assertion that defendants may not refund the purchase price was not substantively challenged, so damages would be inadequate. The plaintiff has been registered proprietor since 2016, tilting the balance of convenience.