Nyaga Kangangi Charawe v The Church Commissioners of Kenya & 2 others

1. This Honourable Court lacks jurisdiction to determine the issues raised, as they involve issues of land ownership and interests, which fall under the purview of the Environment and Land Court as per Article 162(2) & 165(5)(b) of the Constitution which confer exclusive jurisdiction over land disputes to the Environment and Land Court (ELC). 2. Section 13 of the Environment and Land Court Act, No. 19 of 2011 grants the ELC original and appellate jurisdiction over disputes relating to land title, tenure, ownership, and transfer, matters at the heart of this dispute. 3. The present dispute concerns an alleged transfer and contestation over ownership over LR No Ngandori/ Kirigi 2393, 4052, 4053 and 4054 a matter which squarely falls under the jurisdiction of the Environment and Land Court. Jurisdiction over disputes concerning registration, sale, and transfer of land is exclusively conferred upon the ELC under Section 2 & 101 of the Land Registration Act, No 3 of 2012 and Section 2 & 150 of the Land Act, No 6 of 2012. 4. The court lacks jurisdiction to hear and determine the instant application as the 3rd respondent did not acquire title to parcel Ngandori/Kirigi/2393 through the confirmed grant dated 15th March 2012. 5. It is trite law that jurisdiction is a fundamental prerequisite for the exercise of judicial authority. In Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR, the Court of Appeal held that jurisdiction is everything and without it, a court must down its tools if it lacks jurisdiction. Submissions on the Preliminary Objection 4. The parties did not file written submissions on the preliminary objection. The respondents relied on their preliminary objection. Issue for Determination 5. The issue for determination is whether the preliminary objection has merit. Analysis and Determination 6. A preliminary objection must raise a point of law which, once determined, has the ability to determine the whole suit. This was established in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 thus: “ ....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.” 7. The applicant has objected to the summons dated 24th September 2025 on grounds that the orders sought therein can only be issued by the ELC, and hence that this court lacks jurisdiction. It is his case that the properties being held by the respondents were acquired under a grant that has since been revoked. That following such revocation, the respondents cannot move the succession court for orders essentially protecting the land from any form of disposal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7324/eng@2026-05-28 2

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8. Upon close perusal of the proceedings and court file herein, the court notes that Grant and Confirmed Grant pursuant to which the transfers of the subject land parcels was effected were revoked and set aside respectively. By a judgment dated 17th April, 2024 (Njuguna J.) it was ordered as follows: 1. The grant of letters of administration issued to Cyrus Mbogo Njiru (deceased) in the estate of the deceased on 11th December 2009 is hereby revoked; 2. A fresh grant of letters of administration to be issued jointly in the names of the applicant and the respondent immediately following this judgment; 3. The certificate of confirmation of grant issued of 15th March 2012 is hereby set aside; 4. In light of Rule 41(3) of the Probate and Administration Rules, the administrators of the estate of the deceased shall file fresh summons for confirmation of grant within 30 days from the date of this judgment; and 5. There shall be no order as to costs, given that the applicant and the respondent are uncle and niece respectively. 9. That judgment was never appealed against and remains valid and effective to date. 10. Courts have previously held that a succession court can make orders regarding land where it is the subject of an estate of a deceased person which must be preserved. In Santuzza Bilioti alias Mei Santuzza (Deceased) v Giancarlo Falasconi [2014] KEHC 467 (KLR) the court held: “ There is no rule that any issue touching on land must be heard by the Environmental and Land Court even if the land is a subject of succession proceedings. Majority of succession cases involve the distribution of land. Where the deceased land has been sold before distribution is done, the succession court can hear both the administrator and the registered owner to determine whether the land is part of the estate or was lawfully sold.” 11. Therefore, there is no doubt that the subject of the application can be canvassed on merit in light of section 93 of the Law of Succession Act. Under that provision, the succession can court can make orders regarding sale or transfer of land within the estate of the deceased. Disposition 12. In the result, the preliminary objection has no merit and is hereby dismissed. The summons dated 24th September 2025 to be set for hearing with expedition. 13. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 28TH DAY OF MAY, 2026. R. MWONGO JUDGE Delivered in the presence of: 1. M. Njiru for 3 – 4 Respondents 2. Wangechi M – holding brief for Kimanzi for Applicant 3. Ombongi holding brief for Rugaita for 1st Respondent 4. Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7324/eng@2026-05-28 3

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