https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12244

## REPUBLIC OF KENYA **IN THE HIGH COURT OF KENYA AT KISUMU** **SUCCESSION CAUSE NO. E007 OF 2022** **IN THE MATTER OF THE ESTATE OF HENRY ODERO OCHILA (DECEASED)** **PAMELLA AUMA ODERO ……… 1ST APPLICANT/ADMINISTRATOR** **SOFIA ANYANGO ODERO ……... 2ND APPLICANT/ADMINISTRATOR** **GRACE AWUOR ODERO ………. 3RD APPLICANT/ADMINISTRATOR** **MOSES CALVINS O ODERO ..... 4TH APPLICANT/ADMINISTRATOR** * **VERSUS -** **THOMAS AMONDE ODERO ………………………… 1ST RESPONDENT** **GORETTY NYAGOL alias GORETTY ODERO …… 2ND RESPONDENT** **WILBERFORCE OPWAPO ………………………….. 3RD RESPONDENT** **CHARITY MOSOTA ………………………………….. 4TH RESPONDENT** **ELISHA OMER ODERO ..……………………………. 5TH RESPONDENT** **KENNEDY ODHIAMBO OGOT …………………….. 6TH RESPONDENT** **CHRISTINE ANYANGO ODERO ….………………... 7TH RESPONDENT** **EVAYLINE ADHIAMBO AGUK …………………….. 8TH RESPONDENT** **BENARD OLUOCH .…………………………………... 9TH RESPONDENT** **SILPER ANYANGO OKECH ……………………….. 10TH RESPONDENT** **UNICE AWINO OLOO ..……………………………... 11TH RESPONDENT** **ROSE AWINO ………………………………………… 12TH RESPONDENT** **MOURICE OTUNGA ..……………………………….. 13TH RESPONDENT** **EUNICE MOFFAT ……………………………………. 14TH RESPONDENT** **R U L I N G** 1. This is a ruling on the Preliminary Objection dated **18/2/2026** by the 3rd and 4th respondent challenging the competence of the applicants' Chamber Summons dated **10/11/2025**. 2. The Chamber Summons was brought under ***Article 165 of the Constitution****,* ***Sections 45, 47, 79, 82 and 83 of the Law of Succession Act*** *and* ***Rules 49 and 73 of the Probate and Administration Rules****.* In the Summons, the administrators of the Estate of the deceased, sought various orders, *inter-alia,* orders directing that rental income from the estate properties be deposited into specified accounts, eviction of the respondents from various estate properties, rendition of accounts in respect of rent collected from the estate properties, punishment for intermeddling under ***section 45 of the Law of Succession Act (“the Act”)*** and such further orders as may facilitate the implementation of the confirmed grant. 3. In their Objection, the 3rd and 4th respondent contended that this Court lacks jurisdiction to entertain the application. They contended that the Summons dated **10/11/2025** principally sought eviction orders against the respondents from the suit property and consequently raised issues relating to the occupation and use of land, matters which fall within the exclusive jurisdiction of the **Environment and Land Court** pursuant to ***Articles 162(2)(b) and 165(5) of the Constitution and Sections 13(1) and (2) of the Environment and Land Court Act.*** 4. The parties filed their respective submissions which the Court has considered. In the 3rd and 4th respondent’s submissions dated **12/6/2026,** it was submitted that the Objection satisfied the principles laid down in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, as it was a pure point of law touching on the jurisdiction of the Court. 5. That the application sought the eviction of the respondents from the suit property and that the respondents were merely occupants of the said property. According to Counsel, the dispute concerned ownership, occupation and possession of land and therefore fell squarely within the jurisdiction of the Environment and Land Court under ***Articles 162 and 165 of the Constitution and Section 13 of the Environment and Land Court Act.*** 6. That the 3rd and 4th respondent were not parties to the succession proceedings and that transmission of the property had already been completed. Consequently, the dispute was no longer one relating to administration of the estate but rather one concerning occupation of land. 7. On behalf of the applicants, written submissions dated **4/6/2026** were filed. It was submitted that the applicants were the duly appointed administrators of the estate and that under ***section 83(g) of the Act,*** the applicants were under a statutory obligation to complete administration of the estate within six months after confirmation of the grant. 8. It was submitted that although the grant was confirmed on **9/4/2025**, the applicants had been unable to complete the administration because the respondents continued to occupy the estate properties and collect rent therefrom. That the conduct of the respondents amounted to intermeddling contrary to ***section 45 of the Act****.* 9. Counsel for the applicants argued that, the dispute was not one concerning ownership, title or boundaries of land but rather the implementation and enforcement of the Certificate of Confirmation of Grant. That the Family Court retained jurisdiction under ***section 47 of the Act and Rule 73 of the Probate and Administration Rules*** to ensure implementation of the confirmed grant until the beneficiaries are placed into possession of their respective shares. 10. Reliance was placed on **Re Estate of Joab Odero (Deceased) [2025] KEHC 6404 (KLR)** for the proposition that the jurisdiction of the Family Court continues until the administrators have fully implemented the confirmed grant and the beneficiaries have taken possession of their respective portions. Counsel also relied on **Re Estate of M'Kwaria M'Bukia (Deceased) [2021] KEHC 6820 (KLR)** for the proposition that where occupation of estate property impedes implementation of a confirmed grant, the Family Court retains jurisdiction to facilitate completion of administration. 11. The sole issue for determination is whether the Preliminary Objection dated **18/2/2026** is merited. 12. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** a preliminary objection was defined as one consisting 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 successful, is capable of disposing of the suit without the necessity of ascertaining contested facts. 13. In **Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR**, the Supreme Court of Kenya observed that a preliminary objection must not call upon the court to investigate facts or evaluate evidence. The Court stated: - **“*The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits*.”** 1. ***Article 162(2)(b) of the Constitution*** establishes the Environment and Land Court to determine disputes relating to the environment and the use, occupation and title to land. ***Section 13 of the Environment and Land Court Act*** elaborates that jurisdiction. 2. On the other hand, ***section 47 of the Law of Succession Act*** grants the High Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders as may be expedient. ***Rule 73 of the Probate and Administration******Rules***preserves the inherent jurisdiction of the Court to make orders necessary for the ends of justice. 3. In the present case, the Objection raises the question whether the reliefs sought in the application fall exclusively within the jurisdiction of the Environment and Land Court or whether they are matters incidental to the administration of a deceased's estate and therefore properly fall within the jurisdiction of the Family Court. 4. In **Re Estate of Joab Odero Alias Joab Odero Odero (supra),** the court held, inter-alia, that: - ***“To be able to complete administration and distribute the estate to the beneficiaries of a deceased, an administrator must take possession and get in all the assets of a deceased estate as provided in Section 83(b) of the Law of Succession Act Cap 160 (Laws of Kenya).*** ***…*** ***As provided under Section 83(b) of the Law of Succession Act, the 1st and 2nd Administratrixes herein were under a duty and had a right to get in the subject property for the purposes of administration and final distribution of the deceased’s estate. They were acting in accordance with the law when they sought to have the Respondent herein vacate the subject property to enable them proceed as per the Rectified Certificate of Confirmation of Grant that was made on 9th December, 2019 by Cherere J.*** ***…*** ***The Court was therefore persuaded that the 2nd Administratrix had demonstrated that the Respondent was unlawfully in occupation of the subject property contrary to the Laws of Succession and was hindering the administration of the deceased’s estate …”*** 1. In **Re Estate of Wairimu Mwega Nugi (Deceased) eKLR**, on an application by a beneficiary to evict a trespasser in possession of his legacy, the Family Court held: - ***“Under Rule 73 of the Probate and Administration Rules made pursuant to section 97 of the Law of Succession Act, the inherent power of this court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court are not limited. The stance taken by the respondent through his counsel is that the applicant should file suit for the orders he seeks. Why should the road to justice be made long and tortuous? This is a succession matter. The applicant is entitled to the subject property. Why should he be compelled to institute another suit that may take years to determine while his right to the inheritance in these succession proceedings is as clear as daylight? I am not persuaded by the submission made by the respondent’s counsel that this court cannot make the orders sought by the applicant. I do not subscribe to the view that the applicant should enforce his right to the property through another suit. In my view, it is within the amplitude of the powers of this court under the law of Succession Act to make such orders as are necessary to give effect to the distribution of the estate as contained in the certificate of confirmation of the grant.”*** 1. From the two decisions above as read with ***sections 45, 47 and 83 of the Act, it*** is clear that the Family Court retains the jurisdiction over the estate of the deceased until administration is completed. That Court not only declares what the rights and interests of the beneficiaries to the estate are, but it has power to effect those rights including putting the beneficiaries in possession of their respective legacies. Before the beneficiaries have been put in possession thereof and the administration terminated or completed, the Family Court continues to have jurisdiction over the estate property. 2. The Court has carefully examined the Chamber Summons dated **10/11/2025**. The application was brought by the duly appointed administrators of the estate after confirmation of grant. The substantive complaint was that, despite confirmation of the grant, certain respondents continue to occupy estate properties, collect rental income therefrom and thereby prevent the administrators from completing administration of the estate and the implementation of the Certificate of Confirmation of Grant. 3. The applicants are not inviting the Court to determine competing claims to ownership or title to the suit properties. They are only asking the Court to assist them perfect the Certificate of Confirmation of Grant. Although it is common ground that the succession proceedings culminated in a confirmed grant on **9/4/2025**, it will an imperfect legal system where a Court, the Family Court, will have power to determine rights of beneficiaries over the estate of deceased persons but fail to have the power to perfect the same. 4. The reliefs for eviction and rendition of accounts are therefore not sought as independent land claims but as consequential orders intended to facilitate the implementation of the confirmed grant and enable the administrators discharge their statutory duties under ***section 83 of the Act****.* 5. ***Section 83(g) of the Law of Succession Act*** imposes upon personal representatives of a deceased person, the duty to complete administration of the estate and distribute the assets to the persons beneficially entitled thereto. That statutory obligation would be rendered illusory if the Family Court lacked jurisdiction to issue ancillary orders necessary to give effect to its own confirmed grant. 6. The Court is equally not persuaded by the submission that because the 3rd and 4th respondents are strangers to the succession proceedings, the dispute automatically falls within the jurisdiction of the Environment and Land Court. The mere fact that persons occupying estate property were not beneficiaries does not, by itself, convert every application for implementation of a confirmed grant into a land dispute. At best they are intermedlers with the estate who are subject to sanctions under the Act. 7. This is not to suggest that every dispute touching on land forming part of a deceased's estate falls within the jurisdiction of the succession court. Where there are bona fide disputes over ownership, title, boundaries or competing proprietary interests requiring adjudication, such disputes may properly fall within the jurisdiction of the Environment and Land Court. However, that is not the character of the dispute disclosed by the present application. 8. Accordingly, the Court finds that the Preliminary Objection, though properly raising a point of law on jurisdiction, lacks merit. The Court finds that it has jurisdiction under ***section 47 of the Law of Succession Act*** together with ***Rule 73 of the Probate and Administration Rules*** to hear and determine the Chamber Summons dated **10/11/2025**. 9. The Preliminary Objection dated **18/2/2026** is hereby dismissed with costs and the Chamber Summons dated **10/11/2025** shall proceed to hearing on its merits. It is so ordered. **DATED** and **DELIVERED** at **KISUMU** this **31st** day of **July, 2026.** **A. MABEYA, FCI Arb** **JUDGE**