[2017] KEHC 2117 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 512 OF 2008

In the Matter of the Estate of Josphat Mutea M’ Arithi alias Josphat Mutea Arithi (Deceased)

CECELIA KIAJIA MBAE..........................................1ST APPLICANT

ANDREW RIUNGU..................................................2ND APPLICANT

-Versus-

EVANGELINE TIRINDI JOSPHAT..............................RESPONDENT

MAURICE BUNDI GITONGA.............................INTRESTED PARTY

RULING

[1] I have before me an Amended Summons for Revocation or Annulment of Grant filed in court on 3rd July 2015. The significant order sought therein is revocation of the Grant of Letters of Administration Intestate issued to the Respondent on 18th February 2009. But before the Application could be heard on merits, the Respondent and the interested Party filed a Notice of Preliminary Objection on 13 July 2015 raising the following points of objection:

1. The Amended Summons for Revocation of Grant was filed without leave of court.

2. Disputes relating to the determination of proprietary rights based on the doctrine of trust cannot be determined in a succession cause.

3. The Applicant lacks the requisite locus standi to institute the application as he is not a beneficiary in the estate of the deceased.

4. The registered owner of the subject parcel of land has not been enjoined in the proceedings by the Applicant.

[2] On 31st May 2016, the court directed that the Notice of Preliminary Objection dated 8th July 2015 be canvassed by way of written submissions. The Applicant nonetheless did not file their submissions despite having been given ample time to do so. The Respondent and the Interested Party filed submissions and argued that the Amended Summons dated 3rd July 2015 was filed prior to obtaining leave of the court and that the Applicant in paragraph 2 of the affidavit in support of the Amended Summons admitted that the amendment was effected without leave. Consequently, the Respondent/Interested Party contended that the application was null and void abinitio. In support of this proposition, they relied upon the cases of VIJAY KUMAR DAVALJI KANJI GOHL V SURESH MOHANLAL FATANIA & 8 OTHERS (2006) eKLR and BETH WANJIRU KAMAU V SAVIINGS & LOAN (K) LTD (2006) eKLR.

[3] It was further submitted that issues of trust relate to matters of civil nature and that to adjudicate on a matter or claim based on trust, the particulars of such trust had to be spelt out and the breach thereof and that the Applicant ought to have ventilated his claim if any through a civil matter. The Respondent further contended that the Applicant lacked the locus standi to institute the Application as he was not a beneficiary of the estate of the deceased and that further the registered owner of the subject parcel of land was not enjoined in these proceedings.

DETERMINATION

True preliminary objection

[4]I will not re-invent the wheel. A preliminary objection, as was held in the case of MUKHISA BISCUIT MANUFACTURING CO. LTD VS WEST END DISTRIBUTORS LTD 1969 E.A. 696,

“... 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 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”.

Applying the test

[5] The first point of objection that amendment of the Summons was without leave of court is not a real preliminary objection. It is an omission which can be cured under article 159(2) (d) of the Constitution. Similarly, I have held the view that the question of locus standishould never be litigated as a preliminary objection as facts would be required to show whether one has or has not locus standi to sue. In addition, joinder of parties, to wit, the registered owner of the suit land is not a matter for preliminary objection but one that would take intense interrogation of facts on the acquisition of the title. Clearly, the foregoing points are not true preliminary objections in the sense of the law. However, point number 2 on litigation of issues of ownership or trust in a separate suit is quite potent objection capable of disposing of the application in limine. Of fundamental importance is that a question of ownership of estate property or a claim against the deceased on the basis of a trust is a matter that should be litigated in a separate suit. For the sake of jurisprudence, parties in such suit shall be the person claiming trust or ownership on the one hand, and the personal representative of the deceased trustee and the person who is currently the registered owner of the suit land, on the other hand. And the court in such suit should grant appropriate reliefs to the parties. If even if confirmation of grant had not been done, the law of Succession Act would still have dealt with this situation under rule 41(3) & (4) of the Probate and Administration Rules where the court is authorized to set aside or appropriate any particular land or share in an estate to abide by the determination of the question of ownership or trust by the relevant court- in our case, by Environment and Land Court. Therefore, the preliminary objection thereto has merit and I uphold it. As a consequence, and in light of the fact that the grant herein has been confirmed, I hereby dismiss the Amended Summons for Revocation or Annulment of Grant dated the 3RD July 2015 with no order as to costs. It is so ordered.

Dated, signed and delivered in open court at Meru this 9th day of November 2017

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F. GIKONYO

JUDGE

In the presence of:

M/s. Nyaga for interested party

Mr. Kinyanjui advocate for applicants

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F. GIKONYO

JUDGE