Cheptanui (Suing as the Administrator of the Estate of the Late Sibilina Kosgei who is suing as Administratrix of the Late Cherono Mulwa) v Cherono & 5 others (Civil Appeal 003 of 2022) [2025] KEELC 4157 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the land court had jurisdiction over a suit raising fraud in acquisition of estate land
The suit raised issues of fraud touching acquisition of rights to estate land, which are better dealt with by a land court, not a Probate and Administration Court.
While the suit emanates from administration of the estate of Cherono Mulwa, the plaintiff pleaded fraud in the acquisition of the suit properties by the defendants. Following David Ngugi Kamau v Waithera, disputes with third parties over ownership of land arising after confirmation/transmission of a grant are outside the succession court's remit and fall within Article 162(2)(b) jurisdiction. The trial magistrate therefore erred in striking out the suit for want of succession jurisdiction.
Whether the preliminary objection was a proper point of law
The objections required evidence to determine and were therefore not proper preliminary objections.
Applying Mukisa Biscuits, a preliminary objection must be a pure point of law argued on assumed pleaded facts. The trial magistrate relied on documentary evidence to determine the issues, and the respondents added a ground of abatement not in their notice of preliminary objection. Both the objection grounds and the abatement issue required ascertainment of facts, disqualifying them as preliminary objections.
Whether the suit abated on the death of the initial plaintiff
No - the application for substitution was made within one year of the deceased plaintiff's death.
The trial magistrate himself found that the deceased initial plaintiff died on 27th November 2017 and the substitution application was made on 8th August 2018, within a year. Further, following Said Swailem Gheithan Saanum, abatement must be brought to the court's notice, proved and recorded; the legal effect of abatement alone does not dispose of the suit without a court order.
Legal principles established
#- A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion
- Disputes over ownership of land arising post-transmission from a succession cause fall within the jurisdiction of the Environment and Land Court, not the probate court
Court orders
#- 1.Set aside the decision of the lower court striking out the plaintiff's suit
- 2.Reinstate the suit
- 3.Award the costs of the appeal to the plaintiff/appellant
- On appeal from
- Magistrates' Court (Iten SPMC ELC Case No.31 of 2018)
- Iten SPMC ELC Case No.31 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act (as discussed in David Ngugi Kamau)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheptanui (Suing as the Administrator of the Estate of the Late Sibilina Kosgei who is suing as Administratrix of the Late Cherono Mulwa) v Cherono & 5 others (Civil Appeal 003 of 2022) [2025] KEELC 4157 (KLR)", Case Analysis (2024). Iten SPMC ELC Case No.31 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4157/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.