In re Estate of Kaveke (Deceased) (Miscellaneous Application E004 of 2024) [2025] KEHC 19617 (KLR) (29 October 2025) (Ruling) Neutral citation: [2025] KEHC 19617 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI MISCELLANEOUS APPLICATION E004 OF 2024 LW GITARI, J OCTOBER 29, 2025 IN THE MATTER OF THE ESTATE OF MATULU KAVEKE (DECEASED) BETWEEN FRANCIS MATI MUTHOKA .......................................................... 1ST APPLICANT KAVATA MUTHOKA ....................................................................... 2ND APPLICANT AND JULIANA PATRICK MBULA ............................................................ RESPONDENT AND RICHARD MUITHI MUIKYA .............................................. INTERESTED PARTY RULING 1. This matter relates to the Estate of Matulu Kaveke (deceased). A grant of letters of administration was issued on 31/11/2000 and the Estate of the deceased was distributed to the beneficiaries as per the certificate of confirmation of grant dated 31/10/2000. The matter pending before this court is the summons for Revocation of grant filed by the applicants. 2. The Interested Party filed a Preliminary Objection on the jurisdiction of the High Court to entertain the summons for revocation of grant. The gist of the preliminary objection is that the applicants summons ofiends the provisions of the Magistrate’s Court Act No. 26/2015 under its Section 23 and 24 which amended the Law of Succession Act by granting the Magistrates’ Courts the power to revoke the grant issued by their courts. The court directed that the preliminary objection be canvassed first before the summons for revocation of grant. The preliminary objection was canvassed by way of written submissions. 3. I have considered the preliminary objection and the submissions. The issues which arise for determination are whether: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19617/eng@2025-10-29 1
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i. The preliminary raises a pure point of law. ii. Whether the preliminary objection has merits. Whether the Preliminary Objection raises a pure point of law 4. The leading authority in East Africa on what constitutes a preliminary objection is the case of Mukisa Bisquits Manufacturing Company Limited -vs- westend Distributors Ltd (1969) EA 696 where it was held that: “ … a preliminary objection consists of a point of law which has been pleaded or which arises out of clear implication out of pleadings and which it argued as a preliminary point may dispose of the suit. Examples are objection to jurisdiction of the court or a plea of limitation or a submission that parties are bound by the contract giving rise to the suit to refer the suit 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 some facts need to be ascertained or what is sought is the exercise of discretion.” 5. The gist of this decision is that a preliminary objection must be on a pure point of law which is obvious. It will cease to be a preliminary objection if facts have to be ascertained. Thirdly, it has the potential of disposing the suit. A preliminary objection must be obvious on the pleadings and must not be blurred with factual details which are in dispute. See Oraro vs Mbaja (2005) eKLR 141. 6. The preliminary objection is based on none compliance by the applicant with the provision Magistrate’s Court Act 26/2015 which amended Section 48 of the Law of Succession Act to give the Sub-ordinate courts jurisdiction to entertain summons for revocation of grant issued in the said courts. The section gives the magistrates court jurisdiction to entertain any application and determine any dispute under the Act and pronounce such decrees and make such order therein as may be expedient in respect of estates, the gross value of which does not exceed the pecuniary limit prescribed under Section 7 of the Magistrate’s Court Act. The preliminary is no doubt on a pure point of law. It is trite law that jurisdiction is donated to the court by the Constitution and the legislation and in this case jurisdiction to revoke grants issued by the Magistrate’s Courts is given to that court by the statute. Whether preliminary objection has merits 7 The applicant has cited the case of In re Estate of Charles Boi deceased (2020) eKLR where the High Court at Kakamega held that since the law on revocation of grants changed, with the amendments to the Magistrate’s Court Act in 2015 to give jurisdiction to the magistrate’s court to revoke grants that they have power to entertain the summons for revocation of grants should not have been filed in the High Court as a miscellaneous application. 8. It is clear from the amendments to Section 48 and 49 of the Law of Succession Act that it was intended to confer jurisdiction on the magistrates to entertain and determine summon for revocation of grant. By so doing, High Court would only entertain appeals arising from the magistrate’s court revoking or declining to issue an order for revocation of the grant. 9. The summons before this court is brought under Section 76 of the Law of Succession Act and seeks to revoke the grant which was issued in the Principal Magistrate’s court at Kitui. It is therefore clear that the court with jurisdiction to entertain the summons for revocation of grant is the Magistrate’s Court. There is no contest that the Magistrate’s Court has no pecuniary jurisdiction to entertain https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19617/eng@2025-10-29 2
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the summons. It is in the interest of justice that the summons for revocation be determined by the Magistrate’s Court so that the matter comes to this court as an Appeal and not as a Miscellaneous application. Such a procedure would give the parties an opportunity to be heard in the lower court and to pursue the appeal. 10. I find that the Preliminary Objection has merits. I allow it and order that: i. The summons for revocation of grant is not properly before this court. ii. The summons is struck out. iii. Costs in the cause. DATED, SIGNED AND DELIVERED AT KITUI THIS 29TH DAY OF OCTOBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19617/eng@2025-10-29 3
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