https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5198

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELC CASE NO. E003 OF 2020** **BEATRICE MUTHONI GATHIMA……………………..1ST PLAINTIFF STANLEY MUGO MUIGA……………………………2ND PLAINTIFF** **ROSSBELL WANJIKU……………...……………………3RD PLAINTIFF** **-VERSUS-** **ARTHUR WAMBUGU MUIGA ……...…..…………1ST DEFENDANT** **APOLO KARIMI MUIGA ………………..………….2ND DEFENDANT** **MIRIAM MUTHONI GATHIGI……………….……3RD DEFENDANT** **GLADYS HIUKO WACHIRA………………......…….4TH DEFENDANT** **RICHARD GATHIGI MUIGA…………….…………5TH DEFENDANT** **RULING** 1. Paragraph 15 of the Defendants’ Statement of Defence, dated May 24, 2024, sets out the Defendants’ jurisdictional objection as follows: ***“Jurisdiction of this court is denied and the Defendants shall, at the earliest available opportunity and with the indulgence of the court raise a Notice of Preliminary Objection under Section 34 (1) of the Civil Procedure Act and they shall seek that this suit be struck out with costs. Notice is hereby given.”*** 1. When this matter was scheduled for a hearing on March 24, 2026, the Court instructed counsel for the parties to submit written arguments on the sole issue of whether this Court has jurisdiction to hear and decide this matter in light of the PO raised regarding the operations of Section 34(1) of the CPA. 2. Counsel did comply. 3. Counsel for the Defendants assert that after PW1 gave evidence in this case, it became clear that the entire case is anchored in the manner in which the execution and/or implementation of the Judgment and the Certificate of Confirmation of the Grant in **Nyeri High Court Succession Cause No. 40 of 1990 (Estate of The Late Batram Muiga Gathigi** - **Deceased**) were carried out by the 1st and 2nd Defendants (Administrators of the said Estate). 4. Indeed, according to PW1's testimony, the Plaintiffs are inviting this Court to examine and, where feasible, rectify any improprieties or irregularities in the manner in which the Judgment and the Certificate of Confirmation of the Grant should or ought to have been executed. Counsel asserts that, undoubtedly, Section 34(1) of the Civil Procedure Act does not permit this Court to undertake such actions; consequently, the Objection has been raised. 5. Counsel asserts that **Nyeri High Court Succession Cause No. 40 of 1990 (Estate of the Late Batram Muiga Gathigi - Deceased)** remains extant and is being maintained within the High Court Probate and Family Division. By initiating the current proceedings to compel this Court to address issues concerning the execution and/or enforcement of the decision of the High Court Probate Division, the Plaintiffs, with the utmost respect, demonstrate a blatant disregard for the mandatory stipulation under Section 34(1) of the Civil Procedure Act. The Plaintiffs’ proposition to pursue this course of action is therefore not accepted. 6. The following judicial decisions were cited to support this proposition and to provide insight into cases filed in contravention of Section 34(1) of the Civil Procedure; **Richard Boke Chacha & 3 others v Linus Kaikai & another [2021] KEHC 6706 (KLR)**; **Virnekas Mwanaharusi Nihazi v Boniface Kahindi Katana & 2 Others [2019] eKLR**; **DML v ML [2016] KEHC 4907 (KLR)**; **Elizabeth Wanjiku v S Mkenya Garage [2021] eKLR**; **Charles Ngare Karaya v Florence Muthoni & another [2018] KEHC 1129 (KLR);** and **Mwangi (Suing as the Administrator of the Estate of Mwangi Muhoro) v Wambugu [2023] KEELC 18569 (KLR**). 7. The counsel representing the Defendants respectfully urges the Court to uphold the Defendant’s Preliminary Objection (PO) raised pursuant to paragraph 15 of the Statement of Defence dated 24 May 2024. Furthermore, it is requested that the Court determine that the entire proceedings are inconsistent with the mandatory restriction outlined in Section 34 of the Civil Procedure Act and, accordingly, to strike out the suit with costs awarded to the Defendants. The Defendants are entitled to recover costs incurred, as despite having filed this Notice of PO in May 2024, the Plaintiffs proceeded with the matter to hearing. Consequently, the Defendants have been unfairly subjected to costs and expenses in defending a suit that, in essence, lacks merit. 8. Conversely, counsel for the Plaintiffs contend that the Defendants have misrepresented this dispute as a matter of succession solely because the land in question may have been part of a deceased person's estate. The Plaintiffs' claim does not seek: revocation of the grant; redistribution of the deceased's estate; annulment or confirmation of the grant; or interpretation of succession orders. Instead, the Plaintiffs challenge unlawful procedures in the subdivision process and the issuance of title deeds without due process and without their involvement as beneficiaries or occupants of the land. Accordingly, the dispute transcends matters of succession and concerns the legality of land administration procedures and interference with proprietary and possessory rights in land. 9. Counsel for the Plaintiffs further asserts that it is now settled law that, where a dispute concerns ownership, occupation, use, subdivision, boundaries, title processing, or land administration, the Environment and Land Court has jurisdiction, even if the land originated in succession proceedings. In **Azzuri Limited v Pink Properties Limited [2017] eKLR**, the Court held that the Environment and Land Court has jurisdiction over disputes concerning title to land and its occupation. Similarly, in **Willy Kimutai Kitilit v Michael Kibet [2018] eKLR**, the Court affirmed the broad jurisdiction of the Environment and Land Court in disputes concerning interests in land. Further, in **Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR**, the Court recognized that succession proceedings do not bar parties from ventilating proprietary interests before courts with competent jurisdiction. The Plaintiffs submit that the mere fact that the suit property once formed part of a deceased's estate does not automatically oust the jurisdiction of this Court where the dispute concerns land use, occupation, title processing, and unlawful subdivision. 10. The counsel representing the Plaintiffs further argues that the Plaintiffs have explicitly stated that they: were not involved in the survey and subdivision exercise; the title deeds were processed and issued unlawfully and without proper consultation; they have been denied access to and use of portions of land they previously occupied; and the subdivision process was carried out unlawfully and without adherence to procedural requirements. These constitute significant issues that necessitate the presentation of evidence, including witness testimony, survey records, mutation forms, registry documentation, and land administration records. Such issues are unsuitable for resolution through a PO. 11. Counsel concludes that, in light of the foregoing, the Plaintiffs respectfully submit that: a. The Defendants' Preliminary Objection is incompetent and without merit; b. This Honourable Court possesses proper jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; c. The Plaintiffs' claim pertains to use, occupation, subdivision, survey, title processing, and land administration matters, all of which are firmly within the jurisdiction of the Environment and Land Court; d. The suit does not seek the revocation or annulment of a confirmed grant. 1. Accordingly, the Plaintiffs respectfully request that the Defendants' Preliminary Objection be dismissed with costs awarded to the Plaintiffs and that the matter proceed to a full hearing. 2. In Kenyan law, a Preliminary Objection (PO) is a formal challenge, on a pure point of law, at the outset of judicial proceedings. If the Court upholds the objection, it immediately terminates or disposes of the suit without hearing the substantive merits of the case. 3. A PO has a very narrow scope, being specific and restrictive. To be considered valid under Kenyan law, it must satisfy three strict criteria: First, it must involve a clear legal issue directly derived from the pleadings or implied therein. Second, it must assume that all facts presented by the opposing party are correct, with no dispute over facts. Third, the Court is not allowed to scrutinize evidence, affidavits, or witness testimonies to resolve the objection. Additionally, it cannot ask the Court to exercise its discretion, such as granting extensions of time. 4. The seminal decision in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** established the foundational definition, noting that a PO functions similarly to a demurrer, raising a pure point of law. In **Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR**, the Supreme Court reaffirmed these principles. 5. In **Independent Electoral & Boundaries Commission (IEBC) v Jane Cheperenger & 2 Others [2015] KESC**, the Supreme Court clarified that a PO must be a *"crisp point of law"* against undisputed facts. 6. In **Somoni v Muangi [2025] KEHC 9582**, it was emphasized that a PO must serve as a *"shield"* for efficiency rather than a *"sword"* to delay justice. 7. The PO raised here questions the jurisdiction of this Court to continue with this suit. It is based on Section 34(1) of the CPA, which provides as follows: ***“All questions arising between parties to the suit in which the Decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the Decree, shall be determined by the court executing the Decree and not by a separate suit.”*** 1. As held in Owners of the **Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1**, the Court of Appeal in the landmark decision, cemented the rule that a Court's power comes strictly from law, and that if jurisdiction is missing, the Court cannot take a single further step or decide the case on its merits; the Court downs tools. 2. A look at the Plaintiffs' plaint squarely questions the manner in which the estate of the Late Batram Muiga Gathigi – Deceased – was administered, arising from the Certificate of Confirmation of the Grant in **Nyeri High Court Succession Cause No. 40 of 1990 (Estate of The Late Batram Muiga Gathigi - Deceased**). 3. The Plaintiffs contend that the titles arising from that succession cause were secretly procured and that the administrators failed to render a proper account to the beneficiaries. The Court is being asked to revert those titles to their original form and restart redistribution, or to require the administrators to render an account of their administration of the estate in this suit. 4. I do not think that this Court possesses the jurisdiction to do so. As accurately outlined by the Defendants, if the Plaintiffs are dissatisfied with the management and distribution of the estate, their recourse is to return to the High Court, express their reservations, and request the administrators to provide an account of how they managed or distributed the estate, in strict accordance with the distribution matrix outlined in the confirmed grant. To request this Court to commence the process anew would be to compel this Court to engage in succession matters that fall outside the jurisdiction of the ELC. 5. Besides, I concur with the Defendants, recognizing that this Court is precluded by statute from reviewing issues already settled by a Court with proper jurisdiction. As affirmed in the Defendants' cited decisions, Section 34(1) of the Civil Procedure Act (Cap 21) provides that all matters concerning the execution, discharge, or satisfaction of a decree must be addressed by the Court responsible for executing the decree, rather than through a separate, independent legal action. Such questions are to be addressed solely by the Court with jurisdiction over execution. This provision applies strictly to the parties involved in the original lawsuit or their legal representatives. It prohibits the institution of new, independent suits to resolve disputes related to the execution process. Kenyan jurisprudence consistently affirms that any dispute relating to the execution, discharge, or satisfaction of a decree must be resolved by the Court designated for execution, without exception. 6. Case law clarifies that third parties or strangers who were not parties to the original proceedings cannot invoke Section 34(1) to institute summary proceedings unless they are duly recognized as legal representatives or substituted parties. This jurisprudence interprets the section as a procedural mechanism aimed at preventing the proliferation of multiple suits, thereby reducing delays and conflicting decisions during post-judgment enforcement. 7. In **Charles Ngare Karaya v Florence Muthoni & Another [2018] KEHC 1129 (KLR)**, the Nakuru High Court emphasized that any subsequent attempt to declare an execution process illegitimate or to seek relief from a prior judgment is generally prohibited by Section 34(1). Such applications are required to be filed within the original executing Court, rather than in a new suit. 8. The case of **James Wainaina Imunyio & 6 Others v Karanja Mbugua & Co. Advocates [2012] eKLR** is frequently cited to illustrate that remedies concerning post-judgment execution must be pursued through the primary executing Court, thereby rendering new, separate suits invalid. 9. In **Kiarie v Faith Wanjugu T/A Compliance Auctioneers & 2 Others [2024] KEHC 7695**, the High Court clarified that Section 34(1) specifically relates to the rights, disputes, and relationships of the primary parties involved in the initial suit or their legal representatives. Additionally, parties not involved in the original case cannot automatically invoke the summary execution provisions of Section 34. 10. In the case of **Mpeshe v Green Valley Enterprises Limited & Another [2025] KEELC 8621**, the ELC distinguished wrongful execution as creating a new cause of action from the satisfaction of the primary decree, which would require a full hearing. 11. Arising from the foregoing discourse, the PO raised herein is germane. We are dealing with issues already determined in **Nyeri High Court Succession Cause No. 40 of 1990 (Estate of The Late Batram Muiga Gathigi - Deceased)**. If there are any queries arising from the management or distribution of that estate, the parties should resort to the succession cause and ventilate their grievances there. 12. Thus, I uphold the PO and strike out the current suit with costs to the Defendants. **Dated, signed, and delivered virtually at Nyeri on this 22nd day of July 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Karanja for the Defendants** **Denis - Court Assistant** **In the Absence of:** **Ms. Machirah for the Plaintiffs**