Benigina Nduku Kithuka & 1 other v Kantafu Company Limited

3. The preliminary objection was canvassed through written submissions. The Applicants’ submissions 4. The Applicants submitted that the 3rd Respondent herein obtained a Title Deed to the disputed parcel of land pursuant to the grant issued by this honourable court and to that end this honourable court has the jurisdiction to hear the matter. That the grant was issued after parties concealed information from the court. This is because at the time the grant was issued no mention of the Applicants who are on the disputed parcel of land was made and therefore the need to rectify the grant for the Applicants to gain their share. The Applicants submitted that they just fell short to seek revocation of the grant because they have no problem with the rest of the distribution of the Estate. 5. The Applicants submit that this court has the jurisdiction to order the disputed land to revert to the Estate in the event that the grant was obtained through concealment of facts. Reliance was placed on the finding in Re Estate of the Late Philip Mutulili Wambua (Deceased) [2018] eKLR where Justice Odunga (as he then was) revoked a grant and directed that the land reverts to the Estate. 6. Having submitted that the court has the power sitting as a succession court the Applicants urge this court to find that the preliminary objection herein lacks merit and proceed to hear the application dated march 2024 The 1st and 2nd Respondent’s submissions 7. The 1st and 2nd Respondents submitted that, the 3rd Respondent is seeking to evict the Applicants from its parcel of land being Mavoko Town Block3/17387, the land in dispute herein and that the Interested Parties/ Applicants are claiming ownership of the same land and have even applied for injunctive Orders over the same. Therefore, the subject matter in question is about ownership of land and in particular Mavoko Town Block3/17387 between the 3rd Respondent and the Interested Parties/ Applicants herein. Consequently, matters of such nature which borders disputes relating to ownership, use and occupation of land should be handled by the Environmental and Land Court as established under Article 162 (2) (b) of the Kenyan Constitution 2010. 8. The 1st and 2nd Respondents relied on the Supreme Court decision in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Otherswhich cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows: “ 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... 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". https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14297/eng@2025-07-10 2

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9. They also relied on the Supreme Court decision in Independent Electoral & Boundaries Commissionv[Ane Cheperenger & 2 Others[2015] eKLR where the following observation as relates to Preliminary Objections were made: “ The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits." 10. They submitted that the point of law highlighted in the Preliminary Objection is the jurisdiction of this court as provided for under Article 162 (2) (b) of the Constitution 2010 and Section 13 of the Environmental and Land Court Act No. 19 of 2011. 11. In light of the above cited authorities the 1st and 2nd Respondents sought to establish whether the grounds outlined in the Preliminary Objection herein meet the threshold set out in the aforementioned cases. They submitted that, the crux of the matter is whether this court sitting as a Succession Court on a case has jurisdiction to entertain a suit whose subject matter is a land dispute. Reliance was placed on the Court of Appeal decision on the issue of jurisdiction has substantially been dealt with in in the Owners Of The Motor Vessel “S" v Caltex Oil (Kenya) Ltd [1989] eKLR where it was stated as follows on the question of jurisdiction of a Court of law. “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." 12. It was further asserted that it is for the above solemn reason that the issues of jurisdiction are usually raised at the earliest stage of the proceedings because without jurisdiction, the Court must down its tools. 13. The 1st and 2nd Respondents submitted that this honourable court lacks jurisdiction to entertain the suit for the reason that disputes of such nature lie squarely in the Environment and Land Court established under Article 162 (2) (b) of the Constitution 2010 and Section 13 of the Environmental and Land Court No. 19 of 2011 and cited the provisions of Article 162 (2) (b) of the Constitution provides thus: 14. 1. The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2). 2. Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to — a. employment and labour relations; and b. the environment and the use and occupation of, and title to, land. Similarly, Section 13 (1) and (2) of the Environment and Land Court Act confers upon this court jurisdiction to adjudicate all disputes relating to land. It provides thus: Section 13. Jurisdiction of the Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14297/eng@2025-07-10 3

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15. 1. The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. 2. In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputesa. relating to environmental planning and protection, climate issues, land use planning title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; b. relating to land administration and management; c. relating to land administration and management; d. relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and e. any other dispute relating to environment and land, Therefore, the broad jurisdictional framework set out in Article 162 above and the elaboration spelt out under Section 13 above, they invited this honourable court to agree with the 1st and 2nd Respondent that this court lacks jurisdiction to hear a dispute relating to land between the 3rd Respondent and the Applicants and that the land issue pitting the Applicants and the 3Rd Respondent should be filed in the proper forum which is the Machakos Environmental and Land Court which has jurisdiction under Section 13 of the ELC Act to hear and determine such disputes. The 3rd Respondent’s submission 16. The 3rd Respondent supports the 1st and 2nd Respondents Preliminary Objection. They submit that whereas the Applicants' question the 3rd Respondent's ownership of Mavoko Town Block3/17387 and further allege that the 3rd Respondent has attempted to evict them from the suit property, on its part, the 3rd Respondent questions the validity and the enforceability of the agreements upon which the Applicants' claim is based. 17. The 3rd Respondent submits that from a cursory glance of the pleadings, it becomes clear that the Applicants' dispute relates to ownership, use, occupation and possession of the suit property. It is submitted that this court does not have the jurisdiction to hear and determine the application dated 01/03/2024 as the matters therein are a preserve of the Land and Environment Court. 18. The 3rd Respondent cited the case of Priscilla Ndubi and Zipporah Mutiga vs Gerishon Gatobu Mbui, Meru Succession Cause No. 720 of 2013 where it was held:“ The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues of ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14297/eng@2025-07-10 4

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19. Also cited was the case of Re Estate of Solomon Mwangi Waweru (deceased) (2018) e KLR,the court had this to say: “ Therefore, claims by interested third parties against the estate of the deceased ought to be litigated in separate proceedings. It is imperative that any adverse claims against the estate of a deceased person are determined through settlement or where inapplicable through suits against the administrator (s) of the estate and not through an objection like the one before court" "It is my opinion that the fact that the applicant has laid claim to the estate does not give rise to an automatic right to have the distribution of the property stayed by the succession cause. The applicant ought to disclose a legitimate claim which needs to be determined by the Environment and Land court. The succession court would then proceed with the administration of the estate in respect of other properties not affected by the conservatory order if obtained awaiting the outcome of the suit". 20. In view of the above cited authorities, the 3rd Respondent submitted that this is not the proper forum to ventilate the Applicants' claim. The proper forum is the Environment and Land Court. 21. The 3rd Respondent urged the court to allow the 1st & 2nd Respondents' Preliminary Objection and dismiss the Applicants' application dated 01/03/2024. Analysis and Determination 22. I have carefully and cautiously considered the application dated 01/03/2024, the Notice of preliminary objection dated 04/04/2024, the suit and the Parties’ counsel rival submissions on the matter. It is my considered view that I must first deal with the issue of jurisdiction as raised in the preliminary objection whose determination could effectively determine the application and the entire suit herein. 23. On the issue of jurisdiction, the Supreme Court in The Matter of the Interim Independent Electoral Commission, S.C. Constitutional Application No. 2 of 2011; [2011] eKLR, and in Samuel Kamau Macharia and Another vs. Kenya Commercial Bank Limited and 2 Others [2012] eKLR, held that the assumption of jurisdiction by Courts in Kenya, is a subject regulated by the Constitution, Statute law, and judicial precedent. The Supreme Court stated: “ A Court’s jurisdiction flows from either the Constitution or legislation or both. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity”. 24. In Motor Vessel “Lillian S” vs. Caltex Oil Kenya Limited (1989) KLR 1, this Court succinctly set out the principles and context for determination of jurisdiction. Nyarangi, JA stated, inter alia: “ Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 25. It is trite law that where Constitution or Statute confers jurisdiction upon a court, tribunal, person, body or any authority, that jurisdiction must be exercised in accordance with the Constitution or the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14297/eng@2025-07-10 5

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Statute conferring it. See Secretary, County Public Service Board & another vs. Hulbhai Gedi Abdille [2017] eKLR where this Court expressed itself as follows: “ Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum” 26. The issue as to this Court’s jurisdiction can therefore only be determined by first answering the question whether this Court can effectively determine the nature of the Interested Parties/Applicants’ claim over ownership and occupation of a portion of the deceased’s property within the framework provided by the Law of Succession Act. The question of the legal effect of the sale agreements entered into between the Interested Parties/Applicants and the deceased will need to be answered first, before this court as a Probate Court can make a determination at the Applicants’ interest in the deceased’s property. 27. This resolution of that question will in addition involve application of the law on title to land, and the Applicants’ application therefore goes beyond being merely a claim of succession to the deceased property. It is notable in this regard that disputes primarily concerning ownership, use, occupation and possession of land fall within the jurisdiction of the Environment and Land Court as provided by Article 162 (2)(b) of the Constitution, and Section 13(1) and (2) of the Environmental and Land Court Act. 28. The Applicants claim to have bought portions of the disputed land from the deceased which is disputed by the 1st and 2nd Administrators/Respondents. It is in the interest of justice that these ownership disputes be resolved by a competent court as this court lacks the competent jurisdiction to determine matters touching on the ownership, use, occupation and possession of land. 29. I have analysed the case of Re Estate of the Late Philip Mutulili Wambua (Deceased) [2018] eKLR relied on by the Applicants and I find it to be distinguishable to the instant case in that, in the cited case it was not disputed that the Administrator/Respondent was aware when she applied for the grant that the Applicant therein had a claim for part of the deceased property but did not disclose this fact which is not the position in this case. 30. Accordingly, I decline to give the orders sought in the application for the foregoing reasons and direct that the Applicants’ claim be litigated before a competent court which is the Environment and Land Court. 31. In the end, I find that the application by the Interested Parties/Applicants dated 01/03/2024 and the entire suit thereof lack merit and are both dismissed. 32. Each of the Respondents will have half the costs of the application and of the suit payable by the Applicants/Interested Parties. 33. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 10TH JULY 2025. NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 10TH JULY 2025 In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14297/eng@2025-07-10 6

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Mr. Muli.......for Interested Parties/Applicants n/a....................... for 1st & 2nd Administrators/Respondents Mr. Wanjohi......... for the 3rd Respondent Milly................Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14297/eng@2025-07-10 7

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