https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8401

In re Estate of Nzomo (Deceased) (Family Appeal E003 of 2026) [2026] KEHC 8401 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8401 (KLR) Republic of Kenya In the High Court at Makueni Family Appeal E003 of 2026 JN Onyiego, J June 12, 2026 IN THE MATTER OF THE ESTATE OF JOHNSON KIMEU NZOMO Between Janet Ndinda Mativo 1st Appellant Kennedy Wambua Kimeu 2nd Appellant and Alphaeus Kyalo Muathe Respondent (Being an appeal from the Ruling of Hon. P.N. Gesora, CM, delivered on 25th March 2026 in the Chief Magistrate’s Court at Makueni in Succession Cause No. E289 of 2021) Ruling 1.Through the Summons dated 08/05/2025, the Appellants sought the revocation of the grant issued on 17/07/2023 and confirmed on 28/02/2024. The gist of the application was an allegation that the Respondent had failed to disclose that the deceased had, during his lifetime in 1989, sold Plot G-69-Umoja Estate Phase 1 (suit property)- to the 1st and 2nd Appellant’s late husband and father respectively. It was therefore contended that the suit property was not available for distribution to the deceased’s dependants. The application for revocation was dismissed via a ruling delivered on 25/03/2026 by Hon. P. Gesora in Makueni CM’s Succession Cause No. E289 of 2021. 2.Aggrieved by the ruling, the Appellant filed the instant appeal together with an application seeking to preserve the suit property during the pendency of the appeal. 3.The Respondent reacted by filing a Replying Affidavit and a Notice of Preliminary Objection (P.O) which is the subject of this ruling. 4.The P.O is dated 20/04/2024 and grounded as follows;a.The appeal as filed by the 1st and 2nd Appellants vide the Memorandum of Appeal dated 30th March 2026 raises and concerns matters of ownership and proprietorship of registered property, which are inextricably linked to questions of title; and that such matters plainly fall within the exclusive Jurisdiction conferred by Article 162(2) of the Constitution of Kenya.b.That by reason of the foregoing, this Honourable Court lacks the requisite jurisdiction to hear and determine this matter, jurisdiction in that regard being exclusively vested in the Environment and Land Court pursuant to Section 13(1), (2)(d) and (2)(e) of the Environment and Land Court Act.c.That, in the premises, the appeal herein is incompetent, misconceived, devoid of merit, and constitutes an abuse of the process of this Honourable Court.d.That, consequently, the appeal is null and void ab initio and ought to be struck out with costs to the Respondent. 5.Directions were given that the P.O be canvassed first through written submissions. Consequently, the parties complied and filed their respective submissions. 6.As to whether the P.O is merited, reliance was placed on the case of Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696 for the submission that a P.O consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit. It was submitted that the P.O herein clearly sets out points of law as required. 7.Relying on Articles 162 and 165 of the Constitution and Section 13 of the Environment & Land Court Act, it was submitted that this court lacks jurisdiction over land disputes. Reliance was placed on the case of Adome -vs- Ogutu (Succession Appeal 24 of 2021) [2024] KEHC 7682 (KLR) (28 June 2024) (Judgment) where the court (Musyoka J), stated;“The High Court has no jurisdiction to address issues around ownership of property, by dint of Articles 162(2) and 165(5) Of the Constitution. That would include where issues of ownership arise in probate and administration proceedings. It would mean that where an issue around ownership arises in probate proceedings conducted before the High Court, the probate proceedings before that Court would not be the appropriate forum to resolve the issues, and the same ought to be placed before the Court with jurisdiction.” 8.It was submitted that the Appellants’ claim is squarely anchored on a contract of sale of land, specifically, the proposition that a Sale Agreement was concluded between the Appellants’ deceased father and the Defendant’s deceased father, and that the contractual sum was duly paid and thereby passing an equitable and/or legal title to the Appellants' late father. It was contended that by the express terms of Section 13(2)(d), a matter "relating to…contracts…granting any enforceable interests in land” is vested in the Environment and Land Court exclusively. 9.It was submitted that the Law of Succession Act does not confer jurisdiction to determine title to land but to deal with applications and determine disputes that arise over matters that are governed by the Law of Succession Act and pronounce decrees and make orders as may be expedient, in the context of the provisions of the Law of Succession Act. Reliance was placed on the case of Macharia & Another -vs- Kenya Commercial Bank Ltd & 2 Others (Application 2 of 2011)120121 KESC 8 (KLR) (23 October 2012) (Ruling) where the Supreme Court stated;“A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.Where the constitution exhaustively provides for the jurisdiction of a Court of law the Court must operate within those constitutional limits.” 10.It was submitted that the Court must look at the substance and not merely the form of the Appellants’ claim. That, although the appeal is couched as a challenge to the Grant of Letters of Administration in Succession Proceedings, the essence of the relief sought is: (a) a declaration that a contract of sale of land was concluded and completed between the Appellants’ late father and the Respondent’s deceased father; (b) a consequential order that the suit property does not form part of the estate of the deceased; and (c) an order revoking the Grant of Letters of Administration on that basis. It was contended that courts must guard against attempts to circumvent the exclusive jurisdiction of the Environment and Land Court by clothing land disputes in the garb of other proceedings. 11.Further reliance was placed on the case of Owners of the Motor Vessel Lilian ‘S’ -vs- Caltex Kenya Ltd (1989) KLR 1 for the submission that without jurisdiction, a court has no power to make one more step. 12.It was submitted that even on the assumption that all the Appellants’ facts are true i.e., that there was a contract, that payment was made and that the property was sold, the legal position remains that this Court has no jurisdiction to determine or ascertain such alleged facts. Reliance was placed on the case of Estate of Patrick Mwangi Githinji (Succession Cause 531 of 1992) [2025] KEHC 6867 (KLR) (Civ) (15 May 2025) (Ruling) where the court stated;“ 14…The limits of the mandate of probate court are now well established by judicial precedent. In re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR) the Court stated,[27.]Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators…[29.]Clearly, disputes as between the estate and third parties need not be determined within the succession cause…. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above”. 15.I am constrained in the circumstances to find that in so far as the dispute is between the applicants and a third party this court is not vested with the jurisdiction to adjudicate this matter. They may have a legitimate grievance but I am not equipped with the tools to resolve it. In the circumstances, I will uphold the preliminary objection on the ground that this Court lacks jurisdiction. I will not venture into the other issues raised as I am compelled to lay down my tools.” 13.Further reliance was placed on the case of Maina -vs- Njoki (Civil Appeal E021 of 2021) [2024] KEHC 3747 (KLR) (18 April 2024) (Judgment) where the court (M.A Odero J) stated;“ 20.It is manifest that the real dispute here is whether the suit property in question belonged to the Deceased or whether the protestor could validly claim ownership of the same by way of a trust. 21.Matters relating to the ownership use and occupation of land have now under Article 162 of the Constitution of Kenya 2010 been mandated to be determined by a specialized court being the Environment and Land Court (‘ELC’). 25.Therefore, the correct and proper forum before which the Objector ought to ventilate his claim to the suit property is the ELC. The Environment and Land Court is the only court exclusively mandated by law to determine the question of ‘ownership’ of the suit property.” 14.As to who should pay the costs, it was submitted that costs follow the event as per Section 27 of the Civil Procedure Act. 15.As to whether the P.O is merited, it was submitted that the same cannot be raised where facts must be ascertained, where the court is invited to weigh evidence or where the objection depends upon a contested characterization of the very dispute that is pending on appeal. Reliance was placed on the case of George Makateto & Another -vs- Director of Public Prosecution; National Environment Management Authority (Interested Party) [2020] eKLR where the court (D.K Kemei), stated;“It is trite law that a preliminary objection on a point of law must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law.” 16.It was submitted that the objection does not meet the threshold as it raises matters which require consideration of the pleadings, evidence, ruling and grounds of appeal such as; whether the suit property formed part of the estate, whether the 1989 sale and occupation were material to confirmation, whether the Respondent’s non-disclosure amounted to concealment under Section 76, and whether the learned Magistrate correctly treated the property as free property. 17.It was contended that the Respondent’s own position demonstrates the factual contest as he admits that the transaction occurred but alleges that it was incomplete, that only Kshs. 53,635/= was paid and that the purchaser frustrated the transaction. That, on the other hand, the Appellants rely on the admitted sale, long occupation and non-disclosure. That the contest cannot be resolved by merely labelling the Appeal as a title dispute. 18.It was submitted that while jurisdiction may properly be raised as a preliminary point, the court must identify the real issue from the pleadings and reliefs sought. That, in this case, the Memorandum of Appeal seeks to set aside a succession ruling, revoke a grant and exclude the suit property from distribution as free property. That, it does not seek a decree compelling transfer of title or registration of the Appellants as proprietors. Reliance was placed on the case of Christopher Ndaru Kagina -vs- Esther Mbandi Kagina & Another [2016] KEHC 3192 (KLR) where the court (Mativo J, -as he then was) stated;“Case law would shed more light on these provisions and I am content to cite a passage from the Indian case of Balgangadhar Tilak vs. Ganesh Srikrishna,[5] where it was held that:-“The grant of probate only perfects the representative title of the executor to the property which belonged to the testator and over which he had disposing power...”Therefore, a reading of the law reveals that there are properties which the deceased cannot freely dispose of during his lifetime, and in respect of which his interest has been terminated by his death; such property does not form part of the free property of the deceased. Also, if a deceased person has during his life time sold, transferred, disposed or in any manner given out his properties either in exchange of consideration or as gifts inter vivos, such gifts or properties whether transfer had been registered or not do not form part of the deceased's estate. In fact, the Law of Succession in my view protects and preserve transactions made by the deceased during his life time.” 19.It was submitted that authorities such as Adome -vs- Ogutu, re Estate of Atibu Oronje Asioma, re Estate of Patrick Mwangi Githinji and Maina -vs- Njoki, do not assist the Respondent’s prayer to strike out the appeal. That, at their highest, they stand for the proposition that contested title questions should not be finally determined within succession proceedings. That, the said proposition reinforces, rather than defeats, the Appellants’ complaint that the Lower Court made conclusive findings on a disputed transaction when dismissing the summons for revocation. Reliance was placed on the case of Kagina -vs- Kagina & 2 Others [2023] KECA 55 (KLR) where the Court of Appeal stated;“… a reading of the law reveals that there are properties which the deceased cannot freely dispose of during his lifetime, and in respect of which his interest has been determined by his death; such property does not form part of the free property of the deceased. Also, if a deceased person has during his lifetime sold, transferred, disposed or in any manner given out his properties, either in exchange of consideration or as gifts inter vivos, such gifts or properties whether transfer had been registered or not, do not form part of the deceased’s estate. In fact, the Law of Succession in my view protects and preserves transactions made by the deceased during his lifetime.” 20.Further reliance was placed on the case of re Estate of Simion Robi Maroa (Deceased) [2019] KEHC 2285 (KLR) where the court stated;“ 17.I see the above definition in two perspectives. The first one is that a free property relates to an interest in a property of the deceased which was not encumbered during the lifetime of the deceased. The deceased would then have freely dealt with the interest in the property. The interest must also subsist even after the demise of the deceased. The other perspective is that if at any time whether during or after the life of the deceased the interest of the deceased in the property is challenged then the property ceases to be free property. The property then becomes a disputed property.” 21.It was submitted that by failing to disclose the sale and occupation of the property when applying for the Letters of Administration and at confirmation, the Respondent concealed information that was plainly material to the Court’s decision whether the property could be distributed as free property. That, the issue for this appeal is not whether the Appellants should be declared owners, but whether the learned Magistrate erred by treating non-disclosure of that material information as immaterial and by proceeding to make conclusive findings on the transaction. 22.It was contended that in the case of re Estate of Julius Ndubi Javan (Deceased) [2018] KEHC 8523 (KLR), the Court recognized that the validity or enforceability of a Sale Agreement may fall outside the Succession Court but held that the existence of the agreement and the consideration were material facts which ought to have been disclosed at confirmation. It was contended that the said reasoning answers the Respondent’s counter-argument to wit, that the succession court need not finally determine title in order to find that non-disclosure of a known sale or occupation was material to confirmation of the grant. 23.As to whether this court has jurisdiction to hear and determine the appeal, reference was made to Section 50(1) of the Law of Succession Act for the submission that an appeal lies to the High Court in respect of any order or decree made by a Magistrate Court in respect of any estate and that the decision of the High Court thereon shall be final. That, the present Appeal therefore properly invokes this Honourable Court’s appellate jurisdiction over the Magistrate’s succession ruling. 24.It was submitted that the High Court can determine whether the learned Magistrate misapplied Section 76, ignored material non-disclosure or exceeded his jurisdiction by making findings on completion and frustration of a land sale without itself granting a title-transfer remedy. That, the objection confuses the Court’s power to correct a succession ruling with an original claim for ownership of land. 25.As to who should bear the costs of the P.O, it was submitted that costs follow the event unless, for good reason, the court orders otherwise. 26.Having looked at the P.O and rival submissions, the only issue for determination is whether it is merited. 27.The locus classicus in determination of a P.O is the case of Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696 which posits that a P.O must be a pure 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 off the suit. 28.The objection in this matter is that this court lacks jurisdiction to deal with the appeal as it touches on matters of title to land/property. That, such jurisdiction is reserved exclusively for the Environment & Land Court (ELC). 29.According to the materials placed before this court, the Appellant’s are the wife and son of the late Johnson Kimeu Nzomo respectively. It is alleged that the late Johnson Kimeu Nzomo purchased the suit property from the deceased herein Peter Muathe Mwania via a sale agreement executed on 23/01/1989. 30.The issue of the alleged sale was live before the trial court where the Appellants’ position was that the suit property belonged to their father and was therefore not available for distribution to the dependants of the deceased herein. On his part, the Respondent, a son of the deceased herein, acknowledged that he was aware of the said sale but contended that the full purchase price was never paid hence the reason that the suit property was listed as part of the deceased’s assets. 31.In the ruling delivered on 25/03/2026, the trial court stated as follows;“The applicants have not disputed that the transaction was not completed. Efforts to reconcile and settle the matter at the chief’s office Wanzauni Location was rendered futile. The applicants (Appellants herein) knew the status of this property. Deceased John Kimeu Nzomo frustrated the transaction as there were strict timelines for completion of the transaction.” 32.The Memorandum of Appeal dated 30/03/2026 raises the following grounds;a.The learned trial magistrate erred in law and fact by making a conclusive judicial determination on the validity, completion and frustration of a disputed land sale agreement concerning Plot No. G69 Umoja 1.b.The learned trial magistrate erred in law and fact by definitively holding that the suit property Plot No. G69 Umoja 1, formed part of the free property of the deceased despite the undisputed evidence to the contrary.c.The learned trial magistrate erred in law and fact in failing to find that the grant issued on 17th July 2023 and confirmed on 28th February 2024 was obtained fraudulently through material non-disclosure and concealment that was admitted by the Respondent.d.The honorable trial magistrate failed to give any sufficient weight to the undisputed evidence presented before him by the Appellants, disregarded the Respondent’s own admissions, relied on irrelevant evidence and the fact that the subject property was not free property for distribution to the dependants of the deceased. 33.It is evident that the Appellants are claiming ownership to the suit property despite the fact that it is still registered in the name of the deceased herein. It is trite that matters relating to the ownership, use and occupation of land are exclusively reserved for determination by the ELC court as per Article 162 of the Constitution of Kenya. In re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR, the court (Musyoka J), buttressed this position as follows;“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.” 34.Having looked at the dispute before the trial court, the subsequent ruling, the provisions on jurisdiction of Probate & ELC Courts and being minded not to pre-empt the appeal, it is my view that the P.O is not merited. According to Section 50(1) of the Law of Succession Act;“An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.” 35.In a nutshell, the Applicant herein is geared towards arguing the appeal prematurely in the nature of a Preliminary Objection thus usurping the Appellant’s Right of Appeal under Section 50(1) of the Law of Succession. The arguments raised in the P.O. can be raised in the main appeal. Accordingly, the P.O is dismissed. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE 2026................................................J.N. ONYIEGOJUDGE