Jimmy Gwayumba v Benson Gwayumba Muhanji & 4 others

iv. That the summons for confirmation is premature and contrary to Section 71 of the Law of Succession Act; and v. That the applications seek authority to sell immovable estate property prior to confirmation of grant contrary to Section 82(b)(ii) of the Law of Succession Act. Issues For Determination 3. Having considered the Preliminary Objection and the record before Court, the following issues arise for determination: a. Whether the Preliminary Objection raises pure points of law capable of determination as a preliminary objection. b. Whether the Advocate who filed the Summons for Confirmation of Grant and the Amended Summons for Confirmation of Grant is properly on record and whether Order 9 Rules 5 and 9 of the Civil Procedure Rules apply to succession proceedings. c. Whether the Summons for Confirmation of Grant and the Amended Summons for Confirmation of Grant are premature and incompetent for alleged non-compliance with Section 71 of the Law of Succession Act. d. Whether the applications offend Section 82(b)(ii) of the Law of Succession Act by seeking authorization to sell immovable estate property before confirmation of grant. e. Whether the applications constitute an abuse of the process of the Court within the meaning of Rule 73 of the Probate and Administration Rules. f. What orders ought to issue. Analysis And Determination Whether the Preliminary Objection raises pure points of law capable of determination as a preliminary objection 4. The principles governing preliminary objections were settled In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, the Court held that a preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the opposite party are correct and which, if successful, may dispose of the matter. 5. In Oraro v Mbaja [2005] eKLR, the Court emphasized that a preliminary objection must not be blurred with factual details liable to be contested and proved through evidence. 6. The Court has examined the grounds raised by the Respondents and finds that most of them require scrutiny of the court record, examination of pleadings and ascertainment of factual matters. Consequently, although couched as legal objections, the issues raised are not entirely pure points of law within the contemplation of Mukisa Biscuit. b. 7. Whether the Advocate who filed the Summons for Confirmation of Grant and the Amended Summons for Confirmation of Grant is properly on record and whether Order 9 Rules 5 and 9 of the Civil Procedure Rules apply to succession proceedings The Respondents contend that the Applicant’s advocate is improperly on record for failure to comply with Order 9 Rules 5 and 9 of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8985/eng@2026-06-23 2

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8. The Court notes that succession proceedings are governed principally by the Law of Succession Act and the Probate and Administration Rules. Rule 63 of the Probate and Administration Rules imports only specified provisions of the Civil Procedure Rules into succession proceedings. Order 9 is not among the provisions expressly imported. 9. Further, the question whether an advocate is properly on record necessarily requires examination of the procedural history of the matter, the documents filed and the circumstances under which representation changed. 10. Such matters are factual in nature and cannot be conclusively determined without reference to the record. 11. The Court therefore finds that this ground does not raise a pure point of law capable of disposing of the applications at the preliminary stage and consequently fails. Whether the Summons for Confirmation of Grant and the Amended Summons for Confirmation of Grant are premature and incompetent for alleged non-compliance with Section 71 of the Law of Succession Act. 12. The Respondents contend that the applications offend Section 71 of the Law of Succession Act. 13. Section 71 governs confirmation of grants and requires the Court to be satisfied regarding the beneficiaries and the mode of distribution before confirmation can issue. Whether the summons is premature depends on the status of the grant, the date of issuance, and compliance with statutory requirements. 14. These are matters that can only be established upon examination of the court record and the material placed before the Court. Such inquiry transcends the scope of a preliminary objection. 15. The Court therefore finds that the issue cannot properly be determined at this stage and ought to be canvassed during the hearing of the summons. Whether the applications offend Section 82(b)(ii) of the Law of Succession Act by seeking authorization to sell immovable estate property before confirmation of grant. 16. Section 82(b)(ii) of the Law of Succession Act expressly prohibits personal representatives from selling immovable property before confirmation of grant. 17. The Respondents further contend that the Applicant seeks authority to sell a portion of the estate prior to confirmation of grant contrary to Section 82(b)(ii) of the Law of Succession Act. 18. The Court agrees that the law prohibits personal representatives from selling immovable property before confirmation of grant unless expressly authorized by law or by the Court in appropriate circumstances. However, the question whether the impugned summons seeks such a sale, the nature of the property involved, and the circumstances under which the prayer is sought can only be determined upon consideration of the contents of the application and the evidence placed before the Court. 19. Those matters transcend the scope of a preliminary objection and are more appropriately addressed during the substantive hearing of the summons. 20. Further, whether the impugned summons indeed seeks authority for such sale, and the legal consequences thereof, can only be determined upon consideration of the contents of the application itself. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8985/eng@2026-06-23 3

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21. Such an inquiry requires examination of pleadings and the factual context in which the prayers are sought. 22. It is therefore not a matter capable of determination as a pure point of law. Accordingly, this ground also fails. Whether the applications constitute an abuse of the process of the Court within the meaning of Rule 73 of the Probate and Administration Rules 23. Rule 73 of the Probate and Administration Rules preserves the inherent jurisdiction of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 24. The Rule does not create an independent procedural requirement whose breach automatically renders an application incompetent. Whether a party has abused the process of the Court is ordinarily a question dependent upon the facts and circumstances of the particular case. 25. The Respondents have not demonstrated any pure point of law arising under Rule 73 capable of sustaining the Preliminary Objection. 26. This ground therefore fails. 27. Having carefully considered all the grounds raised, the Court is satisfied that the Preliminary Objection does not meet the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. 28. The objections raised require examination of facts, scrutiny of the court record and consideration of the merits of the applications. Such matters are properly reserved for determination during the hearing of the Summons for Confirmation of Grant and the Amended Summons for Confirmation of Grant. 29. Accordingly, a. the Notice of Preliminary Objection dated 25th March 2026 is hereby dismissed. b. The Summons for Confirmation of Grant dated 26th October 2025 and the Amended Summons for Confirmation of Grant dated 26th October 2025 shall proceed to hearing and determination on their merits. c. Costs of the Preliminary Objection shall abide the outcome of the succession cause. d. Hearing for confirmation of grant on 22.10.2026. e. Right of Appeal 30 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 23RD DAY OF JUNE, 2026. S.N MBUNGI JUDGE In the presence of:CA:Zilda/Velma Mr. Munyendo is present for Applicant. Ms mwashi for intended protestor present online. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8985/eng@2026-06-23 4

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