Kavivya & 3 others v Mbatha & 2 others

were registered as owners of Makueni/Mavindini/2020 and Makueni/Mavindini/2022 to the exclusion of the Plaintis. 3. The Plaintis led a suit against the Defendants in which they sought the following reliefs: a. An order of declaration that Land Parcels Makueni/Mavindini/2020 and Makueni/ Mavindini/2022 are properties of the late Kavivya Mbatha. b. A declaration that the Plaintis herein and the Defendants are sons and daughters of the late Kavivya Mbatha and ought to share out land parcels Makueni/Mavindini/2020 and Makueni/ Mavindini/2022 equally amongst themselves. c. An order cancelling and/or revoking title deeds to land parcels Makueni/Mavindini/2020 and Makueni/Mavindini/2022. d. An order directing the Defendants to share equally land parcels Makueni/Mavidini/2020 and Makueni/Mavindini/2022 with the Plaintis herein. e. Cost and interest of the suit. f. Any other relief that this honourable court deems t and just to grant. 4. Before the Defendants could le a defence, they raised a preliminary objection which is the subject of this ruling. 5. The parties were directed to le written submissions in respect of the preliminary objection. The Defendants led submissions dated 14th July, 2023. The Plaintis led submissions dated 18th July, 2025. 6. I have considered the submissions by the parties. The only issue for determination is whether the Plaintis have locus standi to le this suit. 7. A preliminary objection was dened in the case of Mukisa Biscuit Manufacturers Ltd –vs- West End Distributors Ltd (1969) EA 694 as follows: “ In so far as I am aware, 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.” 8. From the case of Mukisa Biscuit Manufacturers Ltd (Supra), it is clear that a preliminary objection cannot be raised if certain facts have to be ascertained. In the instant case, it is not known under what circumstances the Defendants were registered as owners of the two properties. The Plainti s have stated in submissions that their father died before land adjudication in the area and that the Defendants were registered after demarcation. If this be the case, then this is a matter where these facts have to be ascertained and therefore no preliminary objection can be allowed in the circumstances. 9. The Defendants have not led a defence. A proper preliminary objection must arise from pleadings. If it be true as the Plaintis state that registration was done after their father had died, then the issue of the Plaintis requiring letters of administration before ling suit would not arise. The name of their father is merely mentioned as a background basis of their claim. I therefore nd that the preliminary objection herein does not raise a pure point of law which will dispose of this suit. The preliminary objection fails and the same is dismissed with costs to the Plaintis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18421/eng@2025-12-18 2

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It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF DECEMBER, 2025. ……………………………….. HON. E. O. OBAGA JUDGE In The Presence Of: Mr. Muendo for Mr. Muthiani for Plainti M/s Kyalo for Defendant Court Assistant - Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18421/eng@2025-12-18 3

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