https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8403

In re Estate of Mwangi (Deceased|) (Probate & Administration E027 of 2024) [2026] KEHC 8403 (KLR) (Family) (16 June 2026) (Ruling) Neutral citation: [2026] KEHC 8403 (KLR) Republic of Kenya In the High Court at Nyandarua Family Probate & Administration E027 of 2024 KW Kiarie, J June 16, 2026 IN THE MATTER OF THE ESTATE OF: TABITHA NJOKI MWANGI…………………………………………………DECEASED Between Margaret Waithira Gitiche 1st Applicant Rose Wambui Mwangi 2nd Applicant and Harun Gachoki Karani Protestor Ruling 1.The administrators/applicants moved the court through a Notice of preliminary objection dated the 17th day of November 2025, based on the following grounds:a.The protest is based on a purported contract for the sale of land between the deceased and the protestor.b.This court has no jurisdiction to determine the protest as the same falls within the purview of the Environment and Land Court.c.The protest should be struck out or dismissed for want of jurisdiction. 2.The preliminary objection was supported by further grounds as follows:a.The protestor, Harun Gachoki Karani, is not in any way related to the late Tabitha Njoki Mwangi (hereinafter referred to as “the Deceased”) and the protestor is therefore not a survivor and or heir of the Deceased's estate.b.The protestor's claim for a share in the deceased's estate is based on a purported contract or sale of land between the deceased and the protestor.c.That it is clear from the protestor's said affidavit of protest that the protestor claims a share in the deceased’s estate in the capacity of a purchaser.d.That as children and relatives of the deceased and as administrators of the deceased's estate, we do not recognize the purported contract for sale of land between the deceased and the protestor for the reasons given below.e.The purported contract for sale of land between the deceased and the protestor related to Land Parcel Number Nyandarua/Silibwet/XXX, which parcel of land has since been subdivided pursuant to the Decree in Nakuru HC Civil Case No. 105 of 2003 and consequently, the said Land Parcel Number Nyandarua/Silibwet /XXX does exist.f.The said land parcel number Nyandarua/Silibwet/XXX was the subject matter in the said Nakuru HC Civil Case No. 105 or 2003, which fact is captured in the said decree and the Land Register (Green Card) and a certificate of official Search dated 26th June, 2012 over the said parcel of land.g.That on or about 26th April, 2000, a caution was duly registered against the said Land Parcel Number Nyandarua/Silibwet/XXX, on the application of Margaret Waithera Gitiche (administrator/applicant herein), who was the 2nd plaintiff in the said suit.h.That on or about 23rd September, 2002, another caution was duly registered against the said land parcel number Nyandarua/Silibwet/XXX on the application by one Wanjiru Mwangi Gichuhi, who was the 1st Plaintiff in the said suit.i.That the said two cautions are shown in the said certified copy of the register (Green Card) and certificate of official search.j.That the deceased could not have lawfully transferred the purported five (5) acres to the protestor, when the said cautions were still subsisting and when the said suit was still pending.k.That, moreover, the said decree was passed on 15th February, 2008, which is three (3) years before the deceased's demise on 23rd May, 2011.l.That by reason of the foregoing, the protestor's insinuation or allegation that it is the deceased's demise that prevented her from transferring the purported five (5) acres to the protestor cannot be true.m.The purported written will of the deceased related to the said land parcel number Nyandarua/Silibwet/XXX, which parcel of land no longer exists.n.The purported written will has since been overtaken by events, for the reasons given hereinabove.o.That by reason of all the matters aforesaid, the protestor's protest has no merits and the same should be dismissed with costs. 3.The preliminary objection was challenged, asserting that this court has jurisdiction over the matter. 4.A preliminary objection raises purely issues of law. The Court of Appeal in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Limited (1969) EA. 696 (Sir Charles Newbold P) observed as follows:... A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all 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 points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse issues. This improper practice should stop. 5.The administrators/applicants have contended that this court lacks jurisdiction to entertain the protest. Jurisdiction is an issue of law. The Court of Appeal for Eastern Africa in Salim vs Shariff Mohamed Shary [1938] KLR 9 stated:If a court has no jurisdiction over the subject matter of the litigation, its judgment and orders, however precisely certain and technically correct, are made nullities and not only voidable, they are void and may not only be set aside at any time by the court in which they are rendered but be declared void by every court in which they may be presented. It is well established that jurisdiction cannot be conferred on a court by consent of parties, and any waiver on their part cannot make up for the lack or deficit of jurisdiction. 6.The dispute concerns whether the land in issue was sold to the protestor by the deceased. A Probate Court's role is to ensure the proper distribution of the deceased's estate to the rightful heirs. In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR, W. Musyoka J. also stated:28.Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it. 7.In Re Estate of GKK (Deceased) [2017] eKLR, W. Musyoka J, further held:The primary function of a probate court is the distribution of the estate of the dead person. 8.As has been repeatedly noted, the dispute raised by the protestor falls outside the jurisdiction of a probate and administration court. Therefore, his protest is dismissed with costs. DELIVERED AND SIGNED AT NYANDARUA, THIS 16TH DAY OF JUNE 2026KIARIE WAWERU KIARIEJUDGE