High Court 13200 of 2026

and owned by herself and the deceased during the subsistence of their marriage and, upon the deceased's death on 23rd November 2023, his interest automatically vested in her by operation of the doctrine of survivorship. She therefore contends that the property does not constitute part of the deceased's free estate available for administration and distribution and that the preservation orders issued by this Court on 28th May 2026 ought to be reviewed and set aside. 3. In support of her claim, the Applicant first produces a copy of her Marriage Certificate (RM-1), which she says establishes that she was lawfully married to the deceased. She avers that, during the subsistence of the marriage, the deceased and she jointly acquired Plot No. A221 Noonkopir Trading Centre (formerly Plot No. 1083/Business Noonkopir Trading Centre). To support that assertion, she exhibits a Transfer dated 25th June 2002 (RM-2), executed by the County Council of Olkejuado following a transfer by Paul Lenana Nakuo, which she says transferred the property into their joint names. She also produces a letter by Paul Lenana Nakuo (RM-3) requesting the County Council of Olkejuado to cancel the previous allotment and substitute the Applicant and the deceased as the allottees. She contends that these documents evidence the parties' joint acquisition of the property.

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4. The Applicant also produces documents relating to Title No. NGONG/NGONG/28695 (RM-4), which she says show that the property was sold in 2006 and that the proceeds were applied towards the acquisition and development of the disputed property, thereby evidencing her financial contribution. She further relies on the public notice issued by the County Council of Olkejuado inviting allottees to participate in the validation of ownership of plots within Noonkopir Trading Centre (RM-5), explaining that the deceased and she presented their ownership documents for verification and that the validation exercise recognised their interest in the property. 5. The Applicant further exhibits a letter dated 21st July 2010 from the County Council of Olkejuado addressed to the Permanent Secretary, Ministry of Local Government (RM-6), together with the Town Planning, Works and Markets Committee Minutes of 16th September 2008 and the Full Council Minutes of 18th February 2009, which refer to "Mr. & Mrs. Samson O. Ariaga" and recommend formalisation of the allocation. She also relies on the approval dated 14th October 2010 issued by the Ministry of Local Government (RM-7), correspondence dated 4th January 2012 from the District Physical Planning Office relating to the preparation of the Part Development Plan (RM-8), and the Certificate of Official

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Search dated 28th July 2010 (RM-9). She contends that these records consistently recognised the deceased and her as the persons entitled to the disputed property. 6. The Applicant also exhibits land rates demand notices, property rates receipts and LAIFOMS payment receipts (RM10), which she relies upon as evidence of continued payment of statutory outgoings and management of the property. She further produces a Letter of Allotment dated 7th May 2026 and a Property Search Certificate dated 17th June 2026 (RM11A and RM-11B), explaining that, following the deceased's death, she applied to have the County records updated to reflect her as the sole proprietor on the basis of the doctrine of survivorship. Lastly, she exhibits this Court's Order dated 18th June 2026 (RM-12), by which a Further Replying Affidavit was expunged from the record, and states that the present application was filed to enable the Court to determine whether the disputed property forms part of the deceased's free estate. 7. On the strength of the foregoing evidence, the Applicant seeks the following orders: 1) That the application be certified urgent and be heard ex parte in the first instance. 2) That this Honourable Court be pleased to review, vary and/or set aside the orders issued on 28th

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May 2026 directing that rental income from Plot No. A221 Noonkopir Trading Centre be deposited in Court. 3) That this Honourable Court be pleased to declare that Plot No. A221 Noonkopir Trading Centre (formerly Plot Trading Centre) No.1083/Business was jointly Noonkopir owned by the Applicant and the deceased. 4) That this Honourable Court be pleased to declare that upon the death of the deceased on 23rd November 2023, the property devolved upon the Applicant by operation of the doctrine of survivorship. 5) That this Honourable Court be pleased to declare that Plot No. A221 Noonkopir Trading Centre does not form part of the deceased's free estate available for administration and distribution. 6) That this Honourable Court grant such further or other orders as it may deem just. 7) That the costs of the application be provided for. 8. The application is opposed through the Notice of Preliminary Objection dated 6th July 2026 and the Replying Affidavit sworn on the same date by Margaret Kerubo Onchari, the 1st

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Petitioner, on her own behalf and with the authority of the 2nd Petitioner, Nemwel Keoro Ariaga. 9. The Petitioners contend that this Court, sitting as a Probate Court, lacks jurisdiction to determine the Applicant's claim of joint ownership, title and survivorship over Plot No. A221 Noonkopir Trading Centre. They argue that disputes relating to ownership and title to land fall exclusively within the jurisdiction of the Environment and Land Court under Articles 162(2)(b) and 165(5)(b) of the Constitution; that the mandate of the Probate Court under section 47 of the Law of Succession Act is limited to the collection, preservation and distribution of the deceased's free estate; that any claim founded on survivorship ought to be commenced through a substantive suit before the Environment and Land Court; and that the declaratory orders sought in the Motion are therefore beyond the jurisdiction of this Court. 10. In her Replying Affidavit sworn on 06th July, 2026, the 1st Petitioner denies the Applicant's assertion that she only discovered in June 2026 that Plot No. A221 Noonkopir Trading Centre had been treated as part of the deceased's estate. She deposes that the Applicant had previously participated in several proceedings concerning the same property and had sworn affidavits on 30th March 2026 and 21 st May 2026 acknowledging that it formed part of the estate and was

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under her management. According to the 1st Petitioner, the Applicant has therefore taken inconsistent positions before the Court. 11. To support that contention, the 1st Petitioner produces a letter dated 22nd February 2024 authored by Anyoka & Associates Advocates and addressed to the Chairman of the Kajiado County Dispute Resolution Committee (MKO-1). She states that the letter expressly acknowledged that Plot No. A221 Noonkopir Trading Centre formed part of the estate of the late Samson Onyoni Ariaga; advised that any dispute concerning the property could only be resolved through the succession proceedings; and warned that any dealings with the property outside those proceedings would amount to intermeddling. The Petitioners contend that the letter amounts to an admission by the Applicant through her then advocates and demonstrates that she cannot now assert that the property never formed part of the estate. 12. The 1st Petitioner further disputes the Applicant's account of the acquisition and development of the disputed property. She states that whereas the Applicant now claims that Title No. NGONG/NGONG/28695 was sold in 2006 and that the proceeds were applied towards the development of Sam's Place, she had in earlier proceedings relied on a Dispute Resolution Tribunal award showing that the Rongai property

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had instead been allocated as an alternative plot in July 2002. According to the Petitioners, the Applicant has therefore altered her account regarding the source of the funds used to develop the disputed property. The Petitioners maintain that the deceased alone financed the acquisition and development of Sam's Place from his personal earnings while serving in senior positions at KIPPRA and the British Council and that the Applicant has not demonstrated any financial contribution towards its acquisition or development. 13. The Petitioners further accuse the Applicant of intermeddling with estate property. They allege that although she had previously denied knowledge of certain estate assets, she secretly caused Title No. KAJIADO/KAPUTIEI/60325, which had been jointly owned by the deceased and another person as tenants in common, to be transferred into her sole name on 11th November 2025 without the consent of the coadministrators or the authority of the Court. To support that allegation, they produce a certified copy of the Green Card (MKO-2), which they contend evidences the unilateral transfer and demonstrates unlawful interference with estate property during the pendency of these succession proceedings. 14. The Petitioners further aver that the Applicant removed the estate's appointed property managers, Zinco Kenya Ltd, diverted all rental income from Sam's Place to her personal M-

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PESA Paybill, and has failed to account for the income received since the deceased's death. They therefore urge the Court to preserve the disputed property pending determination of the ownership dispute by directing that all rental income be deposited into a neutral account operated by the parties' advocates and by compelling the Applicant, pursuant to section 83(g) of the Law of Succession Act, to render a full and accurate account of all rental income collected from the property from 23rd November 2023. 15. From the pleadings, affidavits, annexures and the rival submissions, the following issues arise for determination: 1) Whether the Notice of Preliminary Objection dated 06th July 2026 raises a pure point of law capable of disposing of the Notice of Motion. 2) Whether this Court, sitting as a Probate Court, has jurisdiction to determine the Applicant's claim that Plot No. A221 Noonkopir Trading Centre (formerly Plot No. 1083/Business Noonkopir Trading Centre) was jointly owned by herself and the deceased and that it devolved upon her by the doctrine of survivorship. 3) Whether the Applicant has established grounds for the review, variation or setting aside of the preservation orders issued on 28th May 2026 and

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for the declaratory orders sought in the Notice of Motion dated 18th June 2026. 4) Who should bear the costs of the Notice of Motion and the Notice of Preliminary Objection. 16. As the Notice of Preliminary Objection raises the question of this Court's jurisdiction, it must be determined in the first instance. The Petitioners argue that the Applicant seeks declarations touching on ownership, title and the doctrine of survivorship in respect of Plot No. A221 Noonkopir Trading Centre, matters which they contend are reserved for determination by the Environment and Land Court. The Applicant, however, maintains that the issue before the Court is whether the disputed property forms part of the deceased's free estate, which she contends is a matter properly falling within the jurisdiction of the Probate Court. 17. The principles governing preliminary objections are well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the former East African Court of Appeal held that a preliminary objection consists of a pure point of law which is argued on the assumption that all the facts pleaded by the opposite party are correct and which, if upheld, is capable of disposing of the

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suit without the necessity of ascertaining contested facts or evaluating evidence. 18. There is no dispute that jurisdiction is a proper subject of a preliminary objection. As was stated in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything and without it a court has no power to make one more step. Where jurisdiction is successfully challenged, the Court must immediately down its tools. 19. The question for determination is whether the objection raised by the Petitioners is capable of disposal as a pure point of law. Although couched as a challenge to this Court's jurisdiction, its determination is inextricably linked to the factual basis of the Applicant's claim. The Applicant contends that the disputed property never formed part of the deceased's free estate because it was jointly owned by the deceased and her and, upon his death, devolved to her by operation of the doctrine of survivorship. In support of that contention, she relies on the transfer documents, official searches, payment validation records and records, County subsequent correspondence, allotment documents exhibited as RM-2 to RM-11. The Petitioners contest both the authenticity and legal effect of those documents and rely on the Applicant's previous affidavits, her earlier conduct and the

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letter exhibited as MKO-1 to maintain that the property has consistently been treated as an asset of the estate. 20. Whether the dispute falls outside this Court's probate jurisdiction cannot therefore be determined without first examining the documentary evidence relied upon by the parties and resolving their competing factual positions regarding the nature of the Applicant's interest in the property. The objection consequently turns on disputed questions of fact that can only be resolved upon evaluation of the evidence and is therefore not capable of disposing of the application at the threshold. It follows that the Notice of Preliminary Objection is devoid of merit and is hereby dismissed 21. The Preliminary Objection having been dismissed, I now proceed to consider the Notice of Motion dated 18 th June 2026 on its merits.The burden rests upon the Applicant to establish, on a balance of probabilities, that Plot No. A221 Noonkopir Trading Centre (formerly Plot No. 1083/Business Noonkopir Trading Centre) was jointly owned by herself and the deceased; that the doctrine of survivorship is applicable; that the property does not constitute part of the deceased's free estate; and that the preservation orders issued on 28 th May 2026 ought to be reviewed, varied or set aside.

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22. The Applicant's case is founded upon a series of documents which, according to her, demonstrate that the disputed property was consistently recognised by the relevant public authorities as being jointly owned by herself and the deceased. Those documents include the Transfer dated 25 th June 2002, the request for transfer by the previous allottee, the validation records, correspondence exchanged with the County Council of Olkejuado and the Ministry of Local Government, the Certificate of Official Search, rates payment records, the subsequent Letter of Allotment and the Property Search Certificate. She contends that those documents establish that upon the death of the deceased, his interest in the property passed to her by operation of the doctrine of survivorship. 23. The Petitioners dispute the Applicant's claim. They rely on the letter dated 22nd February 2024 authored by her former advocates and the affidavits previously sworn by her in these proceedings, which they say amount to admissions that the disputed property forms part of the deceased's estate. They deny that the Applicant contributed to its acquisition or development, maintain that the deceased solely acquired and developed it, and challenge both the authenticity and legal effect of the documents upon which she relies. Their position

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is that the property remains available for administration and distribution. 24. I have considered the rival affidavits, the annexed documents and the parties' submissions. While the Applicant relies on documentary material which she says establishes joint ownership and supports her claim founded on the doctrine of survivorship, the Petitioners challenge both that evidence and the conclusions sought to be drawn from it. The issues raised are therefore founded upon contested facts and disputed documentary evidence. 25. In those circumstances, it would be inappropriate at this interlocutory stage to grant the declaratory relief sought. The declarations would conclusively determine whether the disputed property was jointly owned, whether the doctrine of survivorship applies and whether the property forms part of the deceased's free estate. Those are substantive issues that can only be resolved after a full evaluation of the evidence. 26. The Applicant also seeks the review, variation or setting aside of the preservation orders issued on 28 th May 2026 on the basis that the disputed property belongs exclusively to her by operation of the doctrine of survivorship. The Petitioners oppose that prayer, maintaining that ownership of the property remains contested and that the preservation

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orders should remain in force pending the determination of the succession cause. 27. Having found that the Applicant's claim to exclusive ownership and the applicability of the doctrine of survivorship cannot be determined on the material presently before the Court, I am not persuaded that sufficient grounds have been established to warrant interference with the preservation orders. Those orders were issued to safeguard both the disputed property and the rental income pending determination of the parties' respective rights. Maintaining them will preserve the subject matter of the dispute until the Court determines whether the property forms part of the deceased's free estate. 28. I have also considered the Petitioners' request that rental income be deposited into a joint account operated by the parties' advocates and that the Applicant be compelled to render accounts of all rental income received from the property. 29. Those orders were not sought by way of a substantive application but were introduced in the Replying Affidavit. In the absence of a formal application affording the Applicant an opportunity to respond, it would be inappropriate to grant them in this ruling.

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30. I accordingly make the following orders: 1) The Notice of Preliminary Objection dated 6th July 2026 is hereby dismissed. 2) The Notice of Motion dated 18th June 2026 is hereby dismissed. 3) The preservation orders issued by this Court on 28th May 2026 shall remain in force pending the hearing and determination of the succession cause or until further orders of the Court. 4) The costs of the Notice of Motion dated 18th June 2026 and the Notice of Preliminary Objection dated 6th July 2026 shall be in the cause. DELIVERED AT NYAMIRA THIS July 2026 30th DAY OF WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Applicant - Mr. Mageto for Danstan Omari Associates Advocates For Respondents - Mr. Mandela for M3N Law Chambers LLP

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