https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7341

Gitahi v Kariithi (Family Miscellaneous Civil Case E014 of 2025) [2026] KEHC 7341 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7341 (KLR) Republic of Kenya In the High Court at Nyeri Family Miscellaneous Civil Case E014 of 2025 MA Odero, J May 29, 2026 Between Fredrick Wang’Ondu Gitahi Applicant and Samuel Kariuki Kariithi Respondent Ruling 1.Before this Court is the Notice of Preliminary Objection dated 18th July 2025 filed by the Respondent Samuel Kariuki Kariithi. The Applicant Fredrick Wang’ondu Gitahi opposed the Preliminary Objection. 2.The matter was canvassed by way of written submissions. The Respondent filed the written submissions dated 5th August 2025, whilst the Ex Parte Applicant relied on his written submissions dated 17th February 2026. Background 3.The Ex Parte Applicant filed in this Court a Summons dated 27th June 2025 seeking the following orders:-“1.Spent.2.That this Honourable Court be pleased to issue orders prohibiting Land Registrar Nyeri from making further entries on Land Parcel Number Nyeri/Municipality/Block 1/483 until the succession cause pertaining this case is filed and finalized.3.That costs of this application be borne by the Respondent.” 4.The Applicant who avers that he is a nephew of the late Field Marshal Muthoni Kirima who died on 5th September 2023 alleges that the Respondent Samuel Kariuki Kariithi illegally acquired the property known as LR No. Nyeri/Municipality Block 1/483 (hereinafter the ‘Suit Land’) which was registered in the name of the Deceased. 5.The Applicant further avers that upon concluding a search at the Nyeri Lands Registry he realized that the suit land had been registered in the name of the Respondent. The Applicant states that the transfer of the suit land to the Respondent was suspicious as the Deceased lacked mental capacity to effect such a transfer and there was no representation from any family member. 6.The Applicant states that he has reported the issue to Nyeri Central Police Station vide OB Number 28 of 9th April 2024 and the same is under investigation by DCI. He therefore seeks orders to bar any further dealings with the suit land until the succession cause is heard and determined. 7.In response to this summons the Respondent filed the Replying Affidavit dated 18th July 2025. The Respondent also filed this Notice of Preliminary Objection dated also 18th July 2025 seeking dismissal the summons ‘in limine’ on the following grounds:-“1.That this Honourable Court has no jurisdiction to hear and determine the Summons dated 27th June 2025, for land matters lie in the purview of the Environment and Land Court.2.That the application as filed is incompetent, fatally or incurably defective/bad in form, and discloses no reasonable cause of action, and it is frivolous and vexatious, and it amount to abuse of the court process.3.That in so far as no succession cause has yet been filed in or before this court to warrant this sort of application, the summons is misconceived and fatally bad in law.” Analysis and Determination 8.I have carefully considered the Preliminary Objection filed by the Respondent as well as the written submissions filed by both parties. The definition of a Preliminary Objection was given in the case of Mukisa Biscuits Manufacturing Company Ltd -vs- West End Distributors Ltd [1969] EA where the court stated as follows:-“A preliminary objection consists of a 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 the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submissions that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. ………… 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 opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion.” [Own emphasis] 9.In Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR, the Supreme Court of Kenya stated as follows:-“A preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 10.Therefore in order for a preliminary objection to succeed the following tests must be satisfied.(i)The Preliminary Objection should raise a pure point of law.(ii)The Preliminary Objection must be argued on the assumption that all the facts pleaded are correct.(iii)The Preliminary Objection cannot be raised if any fact is to be ascertained or if what is being sought is the exercise of judicial discretion.(iv)A valid Preliminary Objection ought if successful dispose on the entire suit. 11.Therefore, a genuine and proper Preliminary Objection can only raise pure points of law and must not itself derive its foundation on facts or confirmation which stands to be tested by normal rules of evidence. 12.The issue in contention here is whether the suit land forms part of the estate of the late Field Marshall Muthoni Kirima or whether that property lawfully belongs to the Respondent. 13.Firstly as pointed out by the Respondent it appears that no succession cause has been filed in respect of the estate of the deceased. The question then arises of where i.e in which suit will the Applicant’s claim to the suit land be grounded. 14.The Applicant claimed that the Deceased did not have the mental capacity to deal with and/or transfer the property. The applicant through her sisters obtained a Power of Attorney to deal with the said property. 15.The bottom line is that the dispute between the two parties revolves around the question of ‘Ownership’ of the suit land. The Applicant claims the land belongs to the estate of deceased whilst the Respondent claims the land belongs to him. 16.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’). 17.Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:- 13.Jurisdiction of the Court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment under and land.(2)In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes –(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land. [Rev. 2012] No. 19 of 2011 Environment and Land Court 9. 18.Therefore, the correct and proper forum before which the Applicant ought to ventilate claim of the Estate to the suit land is the ELC. The Environment and Land Court is the only court exclusively mandated of law to determine the question of ‘Ownership’ of the suit land. 19.In re Estate of Stone Kathubi Muinde (Deceased) (2016) eKLR Hon. Justice William Musyoka held that“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 property 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 magistrate’s 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 the court can give effect to it.” [own emphasis] 20.Therefore the Applicants remedy does not lie in a Succession cause (which is yet to be filed) 21.In re Estate of Mbai Wainaina (Deceased) [2015] eKLR the Court held as follows:-“…..The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property.……………It is not a matter of the probate court being incompetent to deal with such issues but rather the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court. Consequently, and for the reasons above stated, I must find and hold that this court has no jurisdiction to resolve the proprietary interest on land based on the alleged trust. In this case therefore, the only path legally open to the applicants is to institute separate proceedings to articulate their claim/rights in the right forum and which is the Environment and land court.” 22.As such I find that this court has no jurisdiction over the matter. The Applicant ought to move the ELC which is the court with requisite jurisdiction to determine and make declarations regarding ownership of the suit property. 23.In conclusion the Preliminary objection dated 18th July 2025 is found to have merit and is allowed. Each party to meet its own costs. DATED IN NYERI THIS 29TH DAY OF MAY 2026.…………………MAUREEN A. ODEROJUDGE