[2017] KEHC 9563 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

Succession Cause No. 3141 Of 2013

IN THE MATTER OF THE ESTATE OF NJUGUNA WAMBUTHI (DECEASED)

GODFREY GICHINGA MWENDIA…...OBJECTOR

VERSUS

JOHN MUIGAI NJUGUNA………….RESPONDENT

RULING

1. The deceased Njuguna Wambuthi died on 30th November 1995. A grant of letters of administration was issued to his son John Muigai Njuguna, the respondent herein on 11th March 2013. On 9th December 2013, the objector filed summons for revocation of the grant. The summary of the objector’s case is that:

i. He is a son of Mwendia Gichinga Maara who is of very old, sickly and has begun to lose memory.

ii. On 15th October 1966, his father bought one acre of land from Njuguna Wambuthi the deceased herein at a consideration sum of Kshs.1200/=. The land was to be exercised from Karai/Renguti/95. The land was then measured and 1 acre demarcated as being his father’s share.

iii. His father and his family took possession of the portion of 1 acre out of land Ref. No. Karai/Renguti/95 and developed it. Their family has built on the 1 acre portion and continues to farm thereon and they have lived on the land for 47 years.

iv. When the deceased died on 30th November 1995, his family secretly filed Succession Cause No. 138 of 2012 in Kiambu Law Courts without involving the objector’s family.

v. The objector conducted an official search and noted that the land was registered under the respondent’s name.

vi. The grant was obtained fraudulently by failure to disclose that the objector’s father had interests in the deceased’s estate.

2. The summons were opposed by the respondent through his replying affidavit dated 10th February 2014 in which he stated that: he was the administrator of the estate of the deceased; that the succession matter in the Chief Magistrates Court at Kiambu proceeded with the knowledge and full participation of all the beneficiaries of the deceased; that neither the objector nor his father are children or dependents of the deceased but are strangers to the estate of the deceased; that the applicant’s proper action would be to file a suit at the Environmental and Land Division and not the Family Division; that there is no valid contract between the deceased and the objector’s father capable of being enforced; and that the objector lacks locus standi to bring this application.

3. The respondent later filed a preliminary objection dated 4th April 2014. The preliminary objection is based on the following grounds:-

a. The application as drawn, filed, and taken out is fatally defective in form and substance and the same ought to be struck out with costs;

b. The applicant lacks locus standi to bring the application;

c. The applicant did not, and does not even claim, to have entered into any sale agreement with the deceased;

d. The applicant purports to bring the application for and on behalf of his father who is currently alive a position which is currently untenable in law;

e. The substantive issue in the application is the interpretation and enforcement of an alleged sale agreement which is outside the purview of the family division of the High Court;

f. The applicant is not a child of the deceased and is not related to him in any way and accordingly the applicant is not and cannot be a beneficiary of the estate of the deceased by any stretch of imagination;

g. The issues arising out of the application are not for determination by the family division of the High Court;

h. The application is an abuse of the process of court.

4. The Preliminary Objection was orally heard on 24th July 2017. Mr. Njogu, appearing for the respondent, argued that the application for revocation of grant is defective in form and substance since the substantive issue for determination is the ownership of the land whose jurisdiction lies with the Environment and Land Court. He submitted that the applicant lacks locus standi to file the application because at the time of the filing he did not have a power of attorney authorizing him to act on behalf of his father who was alive then. He also submitted that the applicant is not the deceased’s child nor is he related to the deceased in any way and therefore in law he cannot be a beneficiary of the deceased.

5. Mr. Gachoka appearing for the objector argued that the objector swore the affidavit on behalf of his further because of the reasons he stated in his affidavit and that the objector’s father has since passed on. He further argued that the objection raises issues which will require examination of evidence and cannot be adequately dealt with in a preliminary objection. He therefore prayed that the preliminary objection be dismissed to allow for the interrogation of the evidence on record.

6. I have considered the evidence and submissions by both parties. I note that the law pertaining to a Preliminary Objection was settled by the celebrated case ofMukisa Biscuit Manufacturing Co. Ltd –v- West End Distributors Co. Ltd [1969] EA 696. A preliminary objection must raise pure points of law and not general grounds raised to oppose the application on its merits. A preliminary objection as per law J.A was stated to be thus:-

“So far as I am aware, 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 of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit or refer the dispute to arbitration.’’

7. One of the issues raised in the preliminary objection touches on the court jurisdiction that the enforcement of the alleged sale agreement is outside the purview of the family division. In the case of Owners of Motor Vessel “Lillian S” vs. Caltex Oil (K) Ltd (Supra),Nyarangi, J. held as follows “it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. The objector’s claim revolves around the sale agreement. In my view any interpretation of the sale agreement its enforcement is outside the purview of family division. The objector should pursue his claim against the administrator in the ELC Court, which has jurisdiction to issue orders of injunction on matters relating to land. I therefore uphold the preliminary objection on the issue of the court jurisdiction. The application dated the 20th of November 2013 is therefore struck off. Each party to bear its own cost.

Dated signed and delivered on the 6TH Day of October 2017

R. E .OUGO

JUDGE

In the presence of:

Mr. Mazera h/b for Mr Gachoka For the Objector

Respondent Absent

Ms Charity Court clerk