https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3190

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT** **AT KILGORIS** **ELC (LC) E001 OF 2025** **EVERLINE CHEPKURUI KORIR (Suing as the legal representative of the** **Estate of JOSEPH OOBO SHANKOI)……………………………….………………PLAINTIFF** **VERSUS** **SHANKATI OLE MENYIKU…………………………………………….……….1ST DEFENDANT** **DANIEL PAPAYIO NALEKE……………………………………………..…….2ND DEFENDANT** **THE LAND REGISTRAR, TRANSMARA WEST………………………………..3RD DEFENDANT** **THE HON. ATTORNEY GENERAL……………………………………………..4TH DEFENDANT** **RULING** 1. This Ruling is in respect of the Notice of Preliminary Objection dated 18th of November 2025 raised by the 3rd and 4th Defendants. 2. The grounds in support of the Preliminary Objection are reproduced herewith 3. ***“That the Honourable court is devoid of jurisdiction to entertain this suit by virtue of the Mandatory provisions of Article 165(3)(a) of the Constitution of Kenya as read with Section 7 of the Magistrates courts Act (cap 10) Laws of Kenya and as such, the same is a non-starter incurably bad in law and an abuse of the court process.*** 4. ***That the plaintiff’s cause of action is substantially a succession dispute over the distribution of the Estate of Joseph Oobo Shankoi (deceased) whose determination is vested within the exclusive jurisdiction of the High court and the Magistrate’s court by virtue of the express provisions of Sections 47 and 48 of the law of Succession Act (cap 160; Laws of Kenya) as read together with Section 5 of the Civil Procedure Act (Cap 21, Laws of Kenya).*** 5. ***That the 3rd and 4th Defendants will be highly prejudiced if the plaintiff’s suit is heard and determined as filed, before the determination of this Notice of Preliminary Objection”.*** 6. The court directed the parties to file their submissions in respect of the Preliminary Objection. The parties submissions are summarised as herefollows; 7. The 3rd and 4th Defendants having raised the Preliminary Objection are deemed to be the Applicants. **Applicant’s Submission** 1. The 3rd and 4th Defendants/Applicants submit that the court should use predominant test and find that the issue before court is a succession issue and the distribution of Estate of Joseph Otoo Shankoi, and that the same is a presence of the jurisdiction of the High court. 2. In support of the above limb of submissions, the 3rd and 4th Defendants place reliance in the decisions in the cases, Lydia Nyambura Vs. Diamond Trust Bank Limited and Another 2018 (eKLR) as well as Mukisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Ltd and S.K Macharia Vs. Kenya Commercial Bank Limited and 2 Others (2012) eKLR. 3. The 3rd and 4th Defendant submit that it is the plaintiff’s case that the 1st Defendant a brother to her husband filed and obtained a Grant of representation without her knowledge in respect of her husband’s Estate hence making the same as a succession dispute and that the court lacks jurisdiction. **Plaintiff’s/Respondent’s Submission** 1. The Plaintiffs framed and submitted on three issues, to wit, 2. Whether the Preliminary Objection raises pure points of law. 3. Whether the Honourable court lacks jurisdiction to hear and determine the suit. 4. Whether the plaintiffs suit is a success dispute under the ambits on the law of succession Act. 5. On issue No. 1, the plaintiff submit that as filed the Preliminary Objection fails the test of preliminary objection. It is the plaintiff submission that the court cannot determine whether the dispute is a succession dispute or a land dispute without interrogating the pleadings in details hence moving the same out of the ambits of a pure point of law. 6. The plaintiff submits that the jurisdictional issues herein cannot be determined by way of a preliminary objection. 7. The plaintiff has cited the decision of Mukhisa Biscuits Manufacturing Ltd Vs West End Distribution Ltd (1969) E.A 696. 8. On issue number 2, the Plaintiff/Respondent submits that Article 162(2)(b) and section 13(2) of the Environment and Land Court provide for the jurisdiction of the ELC and the court is properly seized of the suit. The plaintiff submits that section 47 and 48 of Law of Succession Act must be read harmoniously with the Constitution and the ELC Court Act. 9. The plaintiff submits that a personal representative cannot sue third parties to protect Estate property and place reliance in the Estate of Late Alice Mumbua Mutua (deceased) 2017. 10. The Plaintiff/Respondents thus urge the court to dismiss the Preliminary Objection. **1st and 2nd Defendants Submission** 1. The 1st and 2nd Defendants submit that the issue raised in the Preliminary Objection is not a pure point of law and they cite the decision in Margaret Nyiha Gatambia and 2 Others versus Peninah Ngechi Njaaga and 3 Others, in support of this position. 2. That the suit filed herein does not refer to any succession law that was violated. 3. They submit that the Preliminary Objection raised by the 3rd and 4th defendants, is a non-starter, frivolous, vexatious and incompetent and the same ought to be dismissed. **Issues for Determination** 1. Having analysed the pleadings as well as the submissions by the parties in respect of the Preliminary Objection the court frames the following as issues for determination; - 2. Whether or not the Preliminary Objection as filed meets the threshold of a Preliminary Objection. 3. Whether or not the Preliminary Objection is merited. 4. What reliefs ought to be granted. 5. Who bears the costs of the Preliminary Objection. **Analysis and Determination** 1. The rival parties herein, arguing for and against the Preliminary Objection agreed on what constitutes a Preliminary Objection having cited the decision in the case of Mukhisa Biscuit In support of their respective submission. 2. A preliminary objection was defined in Mukhisa Biscuit Manufacturing as follows; - ***“so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded or which arises by clear implications out of pleadings, and which if argued as a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is agued on the assumption that all acts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.”*** 3. The basis of the preliminary objection is that the court lacks jurisdiction herein, as the matter is a succession matter. The issue of jurisdiction is definitely a pure point of law, but the court shall now examine whether the same emanates from the pleadings so as to fully qualify to be a preliminary objection as defined in Mukhisa Biscuits. 4. Paragraphs 6 to 12 of the Plaint disclose the plaintiff’s cause of action. The said paragraphs are summarised herewith for context: 1. The plaintiff avers that she is the widow of Joseph Oobo Shankwe also known as Shankoi (deceased) who passed on, on 10th August 2007, and she is the Administrator of the Estate of Joseph Oobo Shankwe aka Shankoi (deceased) having obtained a Grant of presentation. 2. The late John Oobo Shankwe (deceased) was the original registered proprietor of all that piece of land known as Transmara/Moita/125 (hereinafter referred to as **“the suit property”**). The 1st Defendant is a brother to the late Joseph Oobo Shankwe and equally the Administrator of the Estate of Joseph Oobo Shankwe aka Shankoi (deceased) having obtained a Grant of presentation and subsequently sold and transfer the suit property to the 2nd defendant”. * 1. Plaintiff was issued with letters of Administration on 17.10.2019, which were letter confirmed on 13.10.2020. 2. The plaintiff while transferring the suit property to herself as an Administrator of the Estate of Joseph Oobo Shankwe uncovered that the 1st Defendant had obtained a Grant of representation for the Estate of Joseph Oobo Shankwe through irregular, illegal, fraudulent, unprocedural and unlawful means having obtained a Grant of presentation and subsequently sold and transfer the suit property to the 2nd defendant. 1. Arising from the Plaint and the definition of the preliminary objection the court finds that without the need of evaluation of evidence, that the pleadings reveal the dispute to be a mixed grill type of suit dispute, being initially a succession dispute requiring *interalia*, determination of the rightful beneficiary of the Estate of John Oobo Shankwe first by the Succession Court which has already issued a Grant before the issues of cancellation of the title and rectification of the register as sought in the reliefs herein are addressed by the ELC. 2. The inter play between the High court as a Succession Court and the ELC court were set out by the Court of Appeal in its decision in Diasproperty Limited and 5 Others Vs. Githae and 10 Others (Civil Appeal E155 of 2023 consolidated 2024 KECA KLR) whereat paragraphs 33 to 40 of the said decision the Learned Judges dealt with the interplay between the Succession court and the ELC court. The learned judges observed, *interalia*, as follows: **“33.The last issue for our determination relates to the interplay between the jurisdiction of the Environment and Land Court and that of the High Court under the**[***Law of Succession Act***](https://kenyalaw.org/akn/ke/act/1972/14)**(Cap. 160). This issue arose in this case because, following the death of the deceased, the 3rd appellant filed Succession Cause No. 1711 of 2006 at Nairobi seeking the grant of letters of administration intestate in respect of his estate. The grant was issued and subsequently confirmed. The 3rd appellant had indicated that the suit property was one of the free properties of the deceased that was available for distribution among his beneficiaries. Following the grant, the 3rd, 4th, 5th and 6th appellants, and others, became the registered proprietors of the suit property. This is the property that they eventually sold to the 1st and 2nd appellants. It was submitted on behalf of the appellants that, the trial court had no jurisdiction to entertain the present claim by the respondent as the succession court had settled the issue of the suit property which it devolved to the beneficiaries of the deceased who then sold it to the 1st and 2nd appellants; that the trial court had found itself in this unfortunate situation and had been forced, in its trial orders, to direct that the respondent should go to the succession court and seek the revocation of the grant on the basis of its findings; and that, once the respondent wanted to lay claim to the 200 acres he was obliged to pursue the claim in the succession court, and not before the Environment and Land Court………** **39. We have considered these arguments. In the first place, when the 3rd appellant approached the succession court he did not notify the respondent. On the evidence, it is clear to us that he knew of the respondent’s claim to the land, based on the sale agreement with the deceased. Even assuming that he did not know, he went to the succession court on the basis that the suit property was the free property of the deceased. It turns out that that was not the case. Even if the respondent had become aware that the 3rd appellant had filed the succession cause, what would have been open to him would have been to lodge a claim in the cause as a creditor to the estate of the deceased. And since his claim was disputed by the 3rd appellant ad his siblings, the succession court would have had no jurisdiction to hear and determine the claim. It would have asked the respondent to file a suit in Environment and Land Court to have the claim determined there. In the meantime, it would have adjourned the confirmation of the grant to allow for such determination. The result of such determination would then have formed the basis of the distribution of the estate of the deceased to the beneficiaries. As matters stand, we find, that procedure was not followed owing to the fact that the 3rd appellant concealed the fact of the succession proceedings from the respondent. But now, the Environment and Land Court has determined that the deceased held the 200 acres in trust for the respondent.** **40 For good measure, the Environment and Land Court has deferred to the jurisdiction of the High Court in the succession cause and that is why it has asked the respondent to take the determination to that court in an application for revocation under section 76 of the**[***Law of Succession Act***](https://kenyalaw.org/akn/ke/act/1972/14)**because clearly, as we have found in upholding the decision of the learned judge, there was material non-disclosure and concealment of the true ownership of the suit property when the list of the properties that belong to the estate of the deceased was presented to the succession court. to have the deceased’s estate re-distributed in accordance with the determination. In other words, we find nothing wrong with the decision of the learned Judge in this dispute.”** 1. From the said decision and noting that the Grant herein had been issued the first port of call of the dispute is the Succession Court so as to deal with the issues of the rightful beneficiary of the Estate of John Oobo, then the said proceedings and determination thereof will form the basis of the prayers for cancellation and/or rectification of a title before the ELC. 2. Thus, as filed the matter is still purely a succession matter to determine the rightful beneficiary of the Estate of John Oobo Shankwe as between the plaintiff and 1st defendant, before a challenge on the sale by the 1st defendant to 2nd defendant is mounted separately. 3. The court thus agrees with the Preliminary Objection raised by the 3rd and 4th defendants in that this court lacks jurisdiction to determine the rightful beneficiary of the Estate of John Oobo Shankwe as it is asked to do, in the Plaint and the proper relief, would thus be to strike out the case, so as to give the plaintiff a chance to ventilate before the succession court the issue of the rightful beneficiary of Estate of John Oobo Shankwe, before the issued of cancellation of the title and rectification of the register is addressed. 4. Consequently, the plaintiffs suit herein is struck out with costs to the 3rd and 4th defendants. 5. The court wishes to thank the counsels who appeared in this matter for heir well researched submissions and special mention to Mr. Nderitu Senior State Counsel (Formerly of the A.G’s office Kisii and now in the A.G’s office Nyamira) for his Robust submission in this matter. Dated at Kilgoris this 21st Day of May 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Clara Mr. Kantai for the Plaintiff, Mr. Ochwangi for the 1st and 2nd Defendants Mr. Ranah for the 3rd and 4th Defendants