Wangamati & 3 others v Khisa & 2 others (Environment and Land Case E006 of 2025) [2025] KEELC 5664 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection dated 23/04/2025 challenging the court's jurisdiction is merited
The objection fails. The court holds that the dispute, being one between the estate of a deceased person and third parties (bona fide purchasers), is properly before the ELC, which is vested with jurisdiction to determine it
The court found that the Applicants had not asked the court to perform probate functions (determining assets, survivors, beneficiaries or distribution). The succession court had itself declined to interrogate the legality of the sale agreements. Disputes between an estate and third parties must be resolved in ordinary civil courts of competent jurisdiction, with any decree thereafter presented to the probate court for implementation. Accordingly the objection was devoid of merit
Whether the Notice of Motion dated 12/03/2025 seeking stay of execution of, and stay of proceedings in, High Court Succession Cause No. 24 of 2002 is merited
The application is dismissed. The ELC cannot stay or interfere with proceedings before the succession court, the two courts being of equal standing
The court distinguished the respective mandates: the ELC's jurisdiction derives from Article 162(2) of the Constitution and section 13 of the ELC Act, while the succession court's mandate derives from the Law of Succession Act. Relying on Isaac Kinyua v Hellen Kaigongi, granting stay orders in respect of a succession cause would amount to straying into a field where the court has no jurisdiction
The essence and limits of a preliminary objection
A preliminary objection must be a pure point of law, assuming the facts pleaded by the other side are correct, and if upheld must be capable of disposing of the suit
Drawing on the locus classicus in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors and the Supreme Court's decision in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd, the court restated that a preliminary objection may only be raised on a pure question of law where there is no proper contest as to the facts, and cannot be raised where the court is asked to exercise judicial discretion
Legal principles established
#- Disputes between the estate of a deceased person and third parties are not necessarily adjudicated within the succession cause; such disputes must be resolved in the ordinary civil courts vested with jurisdiction, and any resultant decree may be presented to the probate court for implementation
- A preliminary objection can only be raised on a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised if facts have to be ascertained or if the court is called upon to exercise judicial discretion
Court orders
#- 1.The Notice of Preliminary Objection dated 23/04/2025 is overruled
- 2.The Notice of Motion application dated 12/03/2025 is dismissed
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muchanga Investments Limited v Telesource.com Limited & 6 others[2026] KECA 1532 (KLR)31 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Wangamati & 3 others v Khisa & 2 others (Environment and Land Case E006 of 2025) [2025] KEELC 5664 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5664/eng@2025-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.