https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10044

In re Estate of Peter (Deceased) (Succession Cause 92 of 2018) [2026] KEHC 10044 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 10044 (KLR) Republic of Kenya In the High Court at Kiambu Succession Cause 92 of 2018 MN Mwangi, J May 19, 2026 ESTATE OF WAITHAKA KERU PETER (DECEASED) Between Ephantus Kimotho Kimani Applicant and Teresia Wanjiku Waithaka 1st Respondent Judy Wambui Kinyanjui 2nd Respondent Sued as the ;legal administrators of the Estate of Waithaka Keru Peter - Deceased Ruling 1.Before this Court for determination is a Notice of Motion application dated 26th July 2022 and a Notice of Preliminary Objection dated 14th August 2022. The application was filed under the provisions of Articles 40, 47, 50 and 159 of the Constitution of Kenya, 2010, Sections 47 and 93 of the Law of Succession Act and Rules 16, 47, 49, 59(2) & (5), 60 and 73 of the Probate and Administration Rules. The applicant seeks joinder to these proceedings and for the said proceedings, Ruling and Orders of 23rd March 2022 to be set aside, reviewed and/or varied. 2.The Motion is premised on the grounds on the face of it, and the supporting affidavit sworn on 26th July 2022 by the applicant herein, Mr. Ephantus Kimotho Kimani. He stated that he purchased properties known as Ndumberi/Ndumberi/3219, 3220 and 3221 from Messrs David Waithaka Kinyanjui, Stephen Thuo Kinyanjui and James Kariuki Kinyanjui, the beneficiaries of the Estate of the deceased herein. He averred that prior to the purchase, he confirmed that the Title Deeds were registered in their names and not the deceased, and that the said properties could not form part of the deceased’s Estate. 3.He deposed that Mr. David Waithaka Kinyanjui, filed an affidavit of protest, claiming that the subject parcels are part of the Estate of the deceased, but the said affidavit was struck out by the Court on 23rd March 2022, for want of prosecution. Mr. Kimotho (applicant), pointed out that on the same day, the Court issued a Certificate of Confirmation of Grant and adopted a Consent, stating that the subject parcels should revert to the deceased. He contended that the said Consent Order will affect his interests. 4.The applicant stated that Article 40 of the Constitution safeguards the right to own property for innocent purchasers and that Section 47 of the Law of Succession Act and Rules 47, 60 and 73 of the Probate and Administration Rules, give the Court discretionary powers to ensure that justice prevails. He added that he is ready and willing to offer security for the issuance of the orders he seeks, and urged this Court to grant stay of execution of the Consent Order to avoid cancellation of the Title Deeds. 5.In opposing the application, the respondents filed a Notice of Preliminary Objection dated 14th August 2022, on the basis that the application is premised on the wrong provisions of the law, that the interested parties are precluded under Section 93 of the Law of Succession Act, hence this Court lacks jurisdiction, and that the applicant is not a creditor or a beneficiary of the deceased’s Estate, which shows that his claim lies in the Environment and Land Court. The respondents claimed that the application offends the doctrine of res judicata under Section 7 of the Civil Procedure Act. They urged this Court to dismiss the application with costs to them. 6.The application and Notice of Preliminary Objection were canvassed simultaneously by way of written submissions. The applicant filed written submissions dated 14th November, 2023 by the law firm of Ng’ang’a Wanjiru & Co. Advocates, while the respondents filed theirs dated 2nd November 2023 by the law firm of A.N. Oeri & Co. Advocates 7.Ms Ng’ang’a, learned Counsel for the applicant submitted that the application dated 26th July 2022, is premised on the right provisions of the law which give this Court jurisdiction to entertain any application before it. She further stated that the said application is also premised on Article 159 of the Constitution which allows the Court to consider substantive justice and not procedural technicalities. She submitted that the applicant lawfully purchased the subject properties from the beneficiaries of the deceased’s Estate, whose Titles were in their names, having been transferred by the deceased, thus the properties cannot form part for the Estate. She invoked the provisions of Article 47 of the Constitution of Kenya on the right to fair administrative action and Article 40 of the said Constitution on right to own property. 8.Counsel urged this Court not to direct this case to the Environment & Land Court, since it is the respondents who wrongly listed the properties as assets of the deceased, which is not the case. She emphasized that the said position can be ascertained from the Title Deeds of the properties. She argued that the property of a deceased person must first be identified before confirmation. She relied on the decision made In the Matter of the Estate of Kabatha Kathemba Succ Cause 49 of 2006. She stated that the Notice of Preliminary Objection does not meet the required threshold and should be dismissed with costs. 9.Ms Moraa, learned Counsel for the respondents argued that the application herein offends the doctrine of res judicata under Section 7 of the Civil Procedure Rules, 2010, since a Ruling was delivered on 16th June 2023. She stated that the applicant moved the Court under Sections 47 and 93 of the Law of Succession Act, Rules 16, 47, 49, 59 (2) & (5), 60 and 73 of the Probate and Administration Rules, instead of Order 1 Rule 10 of the Civil Procedure Rules, 2010, which deals with joinder of parties, which shows that the application should be dismissed. 10.She submitted that the applicant is neither a creditor nor a beneficiary of the deceased’s Estate hence he does not have any stake in the succession proceedings. She stated that the alleged sale took place in contravention of Court Orders by Hon. Justice Muchelule and Hon. Justice Gacheru, who had issued status quo orders, prohibiting any sale. She argued that Messrs David Waithaka Kinyanjui, Stephen Thuo Kinyanjui and James Kariuki Kinyanjui, entered into a Sale Agreement, without Letters of Administration or Certificate of Confirmation of Grant allocating the properties to them. She asserted that the applicant is precluded from placing reliance on Section 93 of the Law of Succession Act since the sellers, David Waithaka Kinyanjui, Stephen Thuo Kinyanjui and James Kariuki Kinyanjui, were not Administrators of the deceased’s Estate. She cited the case of Adrian Nyamu Kiugu v Elizabeth Karimi Kiugu and another [2014] eKLR, in support of her submissions. 11.She stated that since the sellers did not have a legitimate title, as well as the fact that the deceased died intestate and the fact that there were interim orders in place; the applicant can only be said to be an intermeddler of the Estate of the deceased, which makes the Sale Agreement null and void, and the applicant an author of his own misfortune. Counsel submitted that joining the applicant herein, to the Succession Cause will convolute the issues. She cited the case of Muriuki Hassan vs. Rose Kanyua and 4 others [2014] eKLR, to bolster her submissions. She urged this Court to dismiss the application with costs. Analysis And Determination. 12.I have considered the Notice of Motion application, as well as the supporting affidavit. I have also considered the Notice of Preliminary Objection and the submissions filed by Counsel for the parties. The issues that arise for determination are-a.Whether the Notice of Preliminary Objection has merits; andb.Which orders should be granted in respect to the Notice of Motion application. 13.For context, I shall first give a brief history of the Succession cause, before determining the issues. According to the death certificate, Peter Waithaka Keru died on 27th June 2013 and a Grant of Letters of Administration was issued to Judy Wambui Kinyanjui, Teresia Wanjiku Waithaka and Peter Kimani Kinyanjui, on 23rd September 2019. They filed Summons for Confirmation of Grant dated 22nd July 2020, which was challenged by an affidavit of protest by Judy Wambui Kinyanjui, sworn on 12th August 2020 and another affidavit of protest was filed by David Waithaka Kinyanjui, Stephen Thuo Kinyanjui and James Kariuki Kinyanjui, sworn on 17th March 2023. The latter sought exclusion of the subject properties from the Certificate of Confirmation of Grant for reasons that they had been sold to third parties, including the interested party (applicant). They stated that the widow of the deceased, Teresia Wanjiru Waithaka, in the replying affidavit sworn on 23rd November 2015 in Nairobi Succession Cause No. 2127 of 2015, had confirmed the position that the properties had been transferred by the deceased to the beneficiaries who sold them to the respective buyers, and that the deceased had signed the transfer forms and obtained Land Control Board consent, before transferring the properties to the beneficiaries. 14.The said affidavit of protest was dismissed for want of prosecution on 23rd March 2022 and the Court proceeded to adopt the Consent, which culminated in the filing of the instant Motion and subsequently, the Notice of Preliminary Objection. Whether the Notice of Preliminary Objection has merits. 15.In the case of Mukisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, the Court defined what constitutes a valid Preliminary Objection 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 a contract giving rise to the suit to refer the dispute to arbitration”.In the same case, Sir Charles Newbold, P., stated thus-“a preliminary objection is in the nature of what used to be ademurrer. 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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”. 16.The instant Notice of Preliminary has been raised on three issues:i.Jurisdiction;ii.Res judicata; andiii.Wrong provisions of law for joinder. 17.The objection on the ground that the application is res judicata cannot succeed as such a claim has to be supported by facts, which requires the Court to probe evidence, which must be supported by an affidavit. The objection on the ground of joinder, is on a point of law but it can only be determined if this Court finds that it has the requisite jurisdiction. 18.At all times when determining a matter, a Court must be clothed with the requisite jurisdiction since without it, the Court must down its tools. This was stated in the case of the Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd (1989) KLR 1, wherein Nyarangi J.A. held as follows:-“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.' 19.According to the respondents, the dispute amongst the parties herein ought to be determined by the Environment and Land Court, since it is a land matter and not a succession matter, as the dispute deals with transfer and ownership of the subject properties. According to the applicant, he purchased the properties from the beneficiaries of the deceased’s Estate. The said beneficiaries contend that the deceased had signed the transfer forms and obtained consent from the Land Control Board prior to his demise. 20.This Court notes that Ndumberi/Ndumberi Block 3219 is registered in the name of Stephen Thuo Kinyanjui, Ndumberi/Ndumberi Block 3219, is in the name of James Kariuki Kinyanjui and Ndumberi/Ndumberi Block 3221, is in the name of David Waithaka Kinyanjui since 15th April 2015 and transfer to the applicant’s name was done and issuance of Title Deeds was done on 12th June 2015. This Court notes that the deceased died on 27th June 2013 and there is a search certificate of Ndumberi/Ndumberi Block 3221 which shows that the property was in the name of the deceased on 26th June 2013. It is unclear how the properties changed hands from the deceased to the beneficiaries then to the applicant. Those questions can only be determined by the Environment and Land Court. As such, this Court lacks jurisdiction to address the issue of ownership of the subject properties and their inclusion or exclusion in the succession cause, until the issue of ownership of the said properties is determined. 21.This Court is of the considered view that unless and until the issue of ownership is determined in the subject properties, it cannot address the other issues raised in the application, and the objection raised by the respondents in their Preliminary Objection, that the applicant relied on the wrong provisions of the law to seek his joinder to these proceedings. This Court finds that the application herein lacks merits and it is hereby struck out with costs to the respondents. 22.The foregoing therefore means that the Notice of Preliminary Objection, succeeds but only on the issue of jurisdiction. I make no order as to costs for the Preliminary Objection as it has only partly succeeded.It is so ordered. DATED, SIGNED AND DELIVERED IN KIAMBU ON 19TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Ng’ang’a for the interested party/applicantMs Morara for the Administrators/respondentsMs Julia – Court Assistant.