Matheri & 3 others v Mukuha (Being sued in his own capacity and as the administrator of the Estate of Mukuha Murage Mukuha - Deceased); Kariuki & another (Interested Parties) (Environment and Land Case E007 of 2025) [2025] KEELC 8504 (KLR)

2. In response thereof, Jane Wairimu Wangare, the 4th plaintifi filed a replying afidavit dated 30.7.2025 (erroneously identifying herself as the 4th respondent), asserting a claim that the 1st -4th respondents are wife, sons and a daughter of the deceased. She avers that in the Nyahururu Succession case no. 148 of 2007, the applicant had admitted to having sired children with the 1st respondent. She avers that the issue of trust is yet to be heard and determined. 3. I have considered all the issues raised herein in support of or against the preliminary objection including the rival submissions. The fundamental nature of a preliminary objection was given in Mukhisa Bisquits manufacturing Co. Ltd v West End Distributors (1969) EA 696 as follows; “ A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication of pleadings and which if argued as a preliminary point may dispose of the suit”. 4. Firstly, the issue regarding the relationship between the parties is not a point of law, it is in the realm of facts which have to be subjected to proof. Secondly, the defendant has already filed a defence to the suit but has not raised the issues at hand in form of a preliminary objection. On the question of relationship cited at paragraph 3 of his defence, the defendant simply asserts a denial of the relationship, while at the second last paragraph, he acknowledges the existence of other suits but avers that there are no other suits pending between the parties. 5. Thirdly, the claim of the plaintifi is hinged on customary trust. No material information has been availed before this court to indicate that the issue of customary trust had been determined before other courts or tribunals. 6. In Benina Wairimu Kabui v John Kinyua Kabui & another [2016] eKLR, the court while dealing with the question as to whether the issue of trust had been dealt with in other forums stated as follows; “ What is clear from all those cases is that whereas the parties were the same litigating over the suit land, the issues did not involve trust as is now the case before me”. 7. The court in Benina Wairimu Kabui v John Kinyua Kabui & another (supra) cited the case of Kerugoya L.D.T CASE No. 6 of 2007, where it was stated that; “ The Tribunal did not determine the Trust as it had been asked to do. If the applicants still feel that Trust should be determined, then they should go ahead and file the suit before a Court seized of jurisdiction to determine the matter”. 8. As rightly submitted by the plaintifis, the issues raised in the preliminary objection ought to be canvassed in the normal manner, through evidence where contested facts would be subjected to proof. In the final analysis, I find that the preliminary objection is not merited, the same is hereby dismissed with costs to the plaintifis. DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 3RD DAY OF DECEMBER 2025 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Vanessa – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8504/eng@2025-12-03 2

page 2 of 3

Ms. Kimani for Defendant and Interested Parties Gakuhi Chege for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8504/eng@2025-12-03 3

page 3 of 3