Karumba & another v Albushra Real Estate Limited; Kungu & another (Interested Parties)

d. It is trite law that the powers to enforce, by suit or otherwise, all causes of action, with respect to the estate of a deceased vests in the personal representatives and not the beneciaries and hence the beneciaries of an estate cannot purport to le the suit and application herein. e. Theplaintis lack the necessary locus to institute the instant suit and application herein. f. The entire suit is misadvised and incompetent and ought to be struck out. g. The suit before the Court is wanton abuse of court process and must be dismissed in limine. 2. The Preliminary Objection was heard by way of written submissions. The Defendant led its submissions onSeptember 8, 2022. The rst issue for determination was stated as: Whether the Court has Jurisdiction to determine the issue. 3. Relying on the cases of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Beatrice Wambui Kiarie & v Beatrice Wambui Kiarie & 9 others [2018] eKLR, the defendant submitted that this court does not have jurisdiction as the suit as set out by the plaintis is a succession matter. 4. It was submitted that the plaintis, who are beneciaries of the Estate of the Late Kungu Karumba (of which the suit property is part of) were dissatised with the leasing of the suit property to the defendant and that issues raised in the current suit should have been addressed by the High Court and not in the Environment and Land Court. 5. The second issue for determination was stated as: Whether the plaintis have locus standi to institute the present suit. The defendant relied on the provisions ofsections 3 and 82 of the Law of Succession Act and the cases of Beatrice Wambui Kiarie (supra), Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR and Hawo Shanko vs Mohamed Uta Shanko [2018] eKLR. 6. It was submitted that the plaintis have instituted the suit in their capacity as beneciaries while the law is clear that it is only the personal representatives of an estate that have the requisite standing to institute such a suit. Consequently, it was submitted, the suit should be struck out for being defective ab initio. 7. The third issue for determination was stated as: Whether the suit is res judicata. Relying on section 7 of the Civil Procedure Act and the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, the defendant submitted that the plaintis’ suit is res judicata. 8. It was submitted that the plaintis are claiming the suit property as part of their late mother’s estate and that this issue was determined in Succession Case No. 138 of 1983 where Justice Mutuku held that there was no evidence supporting the claim that the suit property belonged to the late mother of the plaintis and not the late Kungu Karumba. It was submitted that the issues raised in this suit are the same ones being raised in the instant suit. 9. The plaintis submitted that the court has jurisdiction to hear the matter; that what is in contention is an issue of possession and occupation of land and that it is the plaintis who have been in occupation of the suit property and have made investments thereon. It is theplaintis contention that the defendant interrupted their quiet possession of the suit property. 10. Theplaintis submitted that they were issued with a grant in Succession Cause No. 2860 of 2012 and that the grant has never been revoked and entitles them as grantees to the suit property. 11. According to the plaintis, it is within their rights to le this suit; that this is not a family matter; that they have the right to sue the administrators of the Estate but did not do so as it is not the administrators https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15847/eng@2023-03-02 2

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but the defendant who illegally evicted them from the suit property and that they have the locus standi to sue the defendant. 12. On the defendant’s claim that the suit is res judicata, the plaintis submitted that the pleadings, prayers and judgement in the previous suit has had not been adduced as required by the law. The plaintis averred that they have never sued the defendant for the reliefs sought in their Plaint. It was submitted that the res judicata claim is therefore misplaced. Analysis and Determination 13. The denition of a preliminary objection was set out as follows in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969)EA 696: “ A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 14. The rst point of law argued by the defendant is that the Environment and Land Court has no jurisdiction in this matter as it is a succession matter. This has been refuted by the plaintis who have argued that the court has jurisdiction because they have been in occupation of the suit property and that the defendant is seeking to evict them. 15. Having read the plaintis’ Plaint and the Notice of Motion dated June 2021, I am convinced that theplaintis’ suit falls within the jurisdiction of the Environment and Land Court and specically as set out insection 13 (2)(e) of the Environment and Land Court Act. 16. I say so because what is before this court is a dispute relating to land whereby the plaintis are claiming that they are the owners and have been in occupation of the suit property and that the defendant has trespassed on the same and wants to evict them. That being so, and considering that whether theplaintis’ occupation of the suit property is legal or not can only be considered after trial, this court has the requisite jurisdiction. 17. The second issue of law raised by the defendant is that the plaintis have no locus standi to bring the instant suit as they are not the personal representatives of the Estate of the Late Kungu Karumba. According to the defendant, it entered in a lease agreement with the rightful Administrators of the Estate. 18. Theplaintis’ case, as I understand it, is that they are in occupation of the suit land having by virtue of the decision in Nairobi High Court Succession Cause No. 138 of 1983, and in Succession Cause No. 2860 of 2012 and that as per the conrmed grant, they are entitled to the suit property. 19. The plaintis have therefore led the suit in their capacities as the beneciaries of the suit land and not in any other capacity. Both parties have conicting perspectives on grants that authorize them to transact in the suit property. Consequently, it cannot be said that there is an assumption that the facts as pleaded are correct. 20. The validity of the grants in question cannot be dealt with by way of a Preliminary Objection. That is an issue that can only be determined either on adavit evidence or at trial. 21. The third point of law raised by the defendant was that the suit as led by the plaintis is res judicata as the matters raised were determined in Nairobi High Court Succession Cause No. 138 of 1983. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15847/eng@2023-03-02 3

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law on determining whether a case is res judicata was set out as follows in Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR: “ Thus, for the bar of res judicata to be eectively raised and upheld on account of a former suit, the following elements must all be satised, as they are rendered not in disjunctive, but conjunctive terms; a. The suit or issue was directly and substantially in issue in the former suit. (b) That former suit was between the same parties or parties under whom they or any of them claim. (c) Those parties were litigating under the same title. (d) The issue was heard and nally determined in the former suit. (e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 22. I am not satised that the defendant’s claim of res judicata meets the above pre-conditions. Firstly, the parties in both suits are dierent. The defendant is not a party to the succession suit and it has not been demonstrated that it is claiming under any of the parties therein. 23. Secondly, the reliefs sought and consequently the issues raised in the two suits are dierent. In the succession matter, theplaintis were seeking temporary injunctions against the defendants therein, one of whom is an interested party in the current suit. In the present suit, the plaintis are seeking a permanent injunction and eviction orders against the defendant. 24. The law as it stands is that all the pre-conditions set out in section 7 of the Civil Procedure Act must be fullled for a claim of res judicata to be successful, which is not the position herein. In the circumstances, I nd that the defendant’s claim fails. 25. For the reasons I have given above, I dismiss the defendant’s Preliminary Objection dated August 27, 2021 with costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF MARCH, 2023. O. A. ANGOTE JUDGE In the presence of; Mr. Abdulahi holding brief for Nurah for Defendant Mr. Ngari for Plainti Mr. Mukira h/b for Kabaiku for Interested Party Ms Musyoka for Trustee Court Assistant - June https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15847/eng@2023-03-02 4

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