Kabaru (Suing as the Legal Administrator of the Estate of Peter Kabaru Muiruri) v Maria

The court applied the Mukisa Biscuit tests: a preliminary objection must be argued on pleaded facts alone without ascertaining facts. Here the defendant's objection required perusal of the grant issued in the succession cause and its rectification to establish whether the suit land was included. That factual inquiry disqualified the objection. Further, the plaint disclosed a cause of action over ownership of land after distribution of the estate, which squarely falls under section 13 of the Environment and Land Court Act.

Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The court held that determining whether the proceedings are directly and substantially in issue would require evidence, taking the question outside a pure point of law. It deferred the issue, inviting parties to address it on how the pending probate proceedings affect this suit.

Relying on Article 162(2)(b) and section 13 of the ELCA, the court held that disputes relating to title to land fall to the ELC. Citing Re Estate of Alice Mumbua Mutua, it noted that claims by or against third parties, and disputes arising after confirmation of a grant, must be determined outside the probate suit, through the Civil Procedure Act structures. The suit land was not included in the rectified grant, and the plaintiff sues as administrator of her deceased husband's interest.