Nyairo & another v Macharia (Land Originating Summons E049 of 2025) [2026] KEELC 3543 (KLR)

3. That despite numerous attempts to have the Respondent surrender the necessary documents to facilitate transfer and eventually distribution of the suit property, the Respondent had declined to do the same which has hindered the implementation of proprietary interests as to the beneficiaries hence the application 4. The court directed for the Notice of Preliminary Objection be dispensed ofi by written submissions and all parties complied with the Respondent drafting submissions dated 20th February 2026 while the 1st Applicant and 2nd Applicant drafted submissions dated 2nd April 2026 and 18th March 2026 respectively Respondent’s submissions 5. In support of their Notice of Preliminary Objection the Respondent submitted that the family division was the right court with necessary jurisdiction to adjudicate on the issues in the application and that the provision of Article 162 (2) (b) of the constitution and Section 13(2) of the Environment and Land court Act did not grant this court the jurisdiction to handle matters raised in the application placing reliance in the case of Re estate of the late Kabutu Kamara Nguro alias Pharis Njegu (Deceased) 6. Counsel further submitted that the application was incompetent and ought to be struck having been brought by way of a miscellaneous application and not a suit Applicant’s submissions 7. The 1st Applicant submitted that the dispute herein involved the issue of land, the transmission of the same and the manner in which it is to be distributed, which falls under the jurisdiction of the Environment and Land court relying on Section 13(2)(e) of the ELC Act and paragraph 1 of the Land Act no 6 of 2012.He submitted that the high court in the succession cause was functus oficio having heard the matter and issued the certificate of confirmation of grant. 8. That under Order 37 of the Civil Procedure Rules, executors of a deceased person could initiate proceedings through an originating summons on any question arising directly out of the administration of an estate. The applicant placed reliance in the case of HCCC No.836 of 2013-In the matter of the estate of Prisca Onyang’o Nande (Deceased). 9. The 2nd Applicant reiterated the contents in the submissions by the 1st Applicant pointing out to the fact that this court has the jurisdiction to hear the matter as the dispute was not a succession matter. She further argued that the Preliminary Objection did not meet the standard of what constitutes a Preliminary Objection as in Mukisa Biscuit Manufacturing Co Ltd Vs West End Distribution Ltd (1969) EA 696 as the court would be required to interrogate whether the dispute relates to matters succession or implementation of land rights. Analysis and determination 10. Having considered the Notice of Preliminary objection, the response and the submissions herein the only issue for determination is whether the Notice of Preliminary Objection dated 9th October 2025 is merited. The threshold of a Preliminary Objection was set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 696 as follows: “...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3543/eng@2026-06-10 2

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implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. “The Court went further to note that: “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.’’ 11. The notice of preliminary objection dated 9th October 2025 is founded on the notion that the suit is improperly before this court as it lacks jurisdiction to entertain the same. It goes without saying that without the requisite jurisdiction a court of law down its tools meaning that the objection, if successful, is capable of finally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law. 12. The question left for the court to decide is whether the issue raised in the originating summons application fall within issues to do with use and occupation of land or is a succession dispute. The process of executing or transmitting property (like transferring a title deed) to beneficiaries after a court issues a Certificate of Confirmation of Grant is a land matter and not a succession matter. Once the certificate of confirmation is issued, the grant confirmed, the succession court in this case the high court’s primary role is complete, and the actual transfer of the land is governed by land legislation, in this case the relevant statute being the Land Registration Act. The applicant seeks to have the Respondent remit documents so as to be able to efiect transmission and transfer of the suit property from the name of the deceased to the parties herein being the administrators. 13. Section 7 of the Land Act lists transmission as one of the ways of acquiring title to a suit property which is what the Applicants seek to achieve. Being that the issue of transmission is captured in the Land Act No 6 of 2012, it goes without saying that the Originating Summons application filed in the appropriate court and this court has the jurisdiction to entertain the same. Questions touching on the validity of the sale, the passing of title, or the recognition of equitable interests in land fall within the jurisdiction of the Environment and Land Court as established under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. Article 165(5) expressly excludes the High Court from exercising jurisdiction in matters reserved for courts established under Article 162(2). 14. Musyoka J in Re Estate of Anda she Munyeti (Deceased) [2021] eKLR held as follows: “ After a grant is confirmed, and a certificate of confirmation of grant is processed and issued, the next step would be transmission of the property in accordance with the distribution in the certificate of confirmation of grant. Transmission is not a process under the Law of Succession Act, Cap 160, Laws of Kenya. The Law of Succession Act does not provide for it. Indeed, the term transmission is not even mentioned in the Act. It is a process which is provided for in the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. The process has nothing to do with the succession process. The efiect of it is that once the court confirms a grant, and issues a certificate of confirmation of grant, its work would be over. The parties ought to move to the next step, of execution of the confirmation orders, which happens at the land registries and at the ofices of other land authorities. The application that has been placed before me dwells on matters that have nothing to do with succession, but registration of land, and the parties are better of addressing the issues to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3543/eng@2026-06-10 3

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relevant land bodies. The promulgation of the Constitution, 2010, on 27th August 2010, had one critical consequence, the taking away of jurisdiction from the High Court, with respect to matters relating to land. That comes out very clearly from Articles 162(2) and 165(5) of the Constitution. Parliament passed a law that established the Environment and Land Court. The Land Registration Act and the Land Act, which govern transmission and land registration, carry provisions that make it clear that where disputes or questions or the need for certain actions arise, with respect to issues that are regulated or governed by the two statutes, such as transmission and land registration, then the court to address them is the Environment and Land Court and any subordinate court vested with jurisdiction. These provisions are in Sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act.” I will associate myself with the reasoning of Justice Musyoka as in the above case. The court expressly indicated that the high court having issued the certificate of confirmation of grant was functus and any issues to do with transmission and land registration fell within the jurisdiction of the ELC court which is the same case as in this current matter. Final disposition 15. Consequently, I find that this court has the jurisdiction to entertain the Originating Summons application dated 28th July 2025 and order as follows; i. That the Notice of Preliminary Objection dated 9th October 2025 is not merited and the same is dismissed. ii. Costs will be in the main cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 10TH DAY OF JUNE 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Bundi for Applicant/Respondent Ms. Kyumwa for 2nd Applicant N/A for Respondent Philomena W Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3543/eng@2026-06-10 4

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