https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10046

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT KIAMBU** **SUCCESSION CAUSE NO. E036 OF 2021** **IN THE MATTER OF THE ESTATE OF ZIPPORAH WANJIKU KIGUMI ALIAS ZIPORAH WANJIRU KIGUMI (DECEASED)** EUNICE NG’ENDO KIGUMI……….……...................OBJECTOR/APPLICANT -VERSUS- GRACE MUTHONI THUO …………….…………………….…. RESPONDENT **RULING** 1. The applicant moved this Court by way of Summons for Revocation of Grant dated 7th November 2023 pursuant to Articles 27 and 40 of the Constitution, Section 76 of the Law of Succession Act, Cap. 160 Laws of Kenya, Rules 26, 40(8), 44 and 73 of the Probate and Administration Rules, 1980, and all other enabling provisions of the law. 2. The Summons is supported by an affidavit sworn by Ms Eunice Ng’endo Kigumi, the applicant herein, sworn on 7th November 2025. The applicant seeks orders to revoke the Grant of Letters of Administration dated 7th October 2021, because the deceased died leaving a valid Will dated 5th December 2015. She also prays to be allowed to file the necessary documents for Grant of Probate. 3. The respondent opposed the Summons by way of a Notice of Preliminary Objection dated 9th September 2025, which forms the subject of this Ruling. The respondent raised the following objection- 4. ***THAT the application is incurably defective, bad in law and does not lie as the applicant has failed to comply with Rules 50, 51 and 52 of the Probate and Administration Rules.*** 5. ***THAT the application is misconceived, incompetent, defective and bad in law as the applicant seeks to prove a Will in a revocation application.*** 6. ***THAT the said application is an abuse of the Court process and ought to be dismissed with costs.*** 7. In opposition to the Notice of Preliminary Objection, the applicant filed a replying affidavit sworn on 5th December 2025 by Ms Eunice Ng’endo Kigumi. I hereby strike out the replying affidavit as it cannot be a valid response to a Notice of Preliminary objection which is required to raise only issues of law. The response that can be made to a Notice of Preliminary Objection is written submissions addressing the questions of law raised. 8. The Court directed that the Notice of Preliminary Objection would be determined first and would be canvassed by way of written submissions. The respondent filed submissions dated 27th April 2026 by the law firm of Gatitu Wang’oo & Company Advocates. The applicant filed submissions of even date, through the law firm of Mwangi & Ngatia Advocates. 9. Mr. Murigu, learned Counsel for the respondent reiterated that Wills are governed by Rules 50, 51 and 52 of the Probate and Administration Rules. He stated that the alleged Will has no attestation clause, no translation as required by law and the original has not been availed to Court as per the Rules. He stated that a Will cannot be introduced as evidence, as the applicant must first comply with the provisions relating to Wills. He argued that the applicant is seeking to introduce a Will in a revocation application after refusing to subject it to scrutiny required by the Rules, which amounts to abuse of Court process. He relied on the case of **Arthur Wamiti Njoroge v Disciplinary Tribunal & another** [2017] eKLR, in support of his claim that the Summons is an abuse of Court process. 10. Mr Gatitu, learned Counsel for the applicant submitted that a Notice of Preliminary Objection must raise a pure point of law, but this one does not meet the said requirement. He cited the case of **Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd** [1969] E.A 696. He stated that the respondent is seeking to dismiss the Summons for Revocation of Grant by citing irrelevant and inapplicable Rules. He reiterated that Rule 50 deals with maintenance of a Register of Wills lodged with the Court, Rule 51 deals with the retention of original Wills in respect of which probate or letters of administration with the Will annexed which have been granted or applied for in any Registry and Rule 52 deals with the inspection, marking, and where necessary, translation of Wills in instances where an application for a Grant has been made to the Court. 11. Counsel argued that these Rules do not apply in this case and do not constitute pure points of law, but factual matters which require interrogation. He cited the case of **Oraro v Mbaja**[2005] eKLR, as well as the case of **China Road & Bridge Corporation v Kelvin Nyuki Machimbo** [2019] KEHC 1919 (KLR), in support of his submissions. 12. The applicant urged this Court to find the Notice of Preliminary Objection to be incompetent for not being anchored on proper provisions of law and to dismiss it. **ANALYSIS AND DETERMINATION** 1. Having considered the Summons for Revocation of Grant, the Preliminary Objection and the submissions filed by Counsel for the parties, this Court finds the sole issue for determination is whether the Notice of Preliminary Objection has merits. 2. In **Mukisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd** (1969) EA 696,the Court defined what a valid Preliminary Objection is and held that:- ***“---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 a contract giving rise to the suit to refer the dispute to arbitration”.*** In the same caseSir Charles Newbold, P.,stated thus - ***“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 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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.*** 1. The respondent has raised the Notice of Preliminary Objection on the basis that the Summons for Revocation of Grant has not complied with Rules 50, 51 and 52 of the Probate and Administration Rules. The Rules provide as follows: ***“50. Wills registers*** ***At every registry there shall be maintained a register called the Wills register for that registry in which the following information shall be recorded relating to every Will of a deceased person in regard to which an application is made—*** ***(a) the name of the testator;*** ***(b) the cause number;*** ***(c) the serial number assigned to the Will;*** ***(d) the date of filing of the Will and of the issue of any Grant;*** ***(e) where a Grant has been confirmed, the date of confirmation.*** ***51. Retention of original Wills of deceased*** ***All original Wills, or Court authenticated copies thereof, of which probate or letters of administration with the Will annexed have been Granted by or applied for in any registry, shall be retained by and preserved among the records of that registry unless removed therefrom pursuant to regulations made under these Rules.*** ***52. Marking of Wills and furnishing of translations*** ***(1) A photocopy of every Will in respect of which an application for a Grant is made shall be marked by the signature of the applicant and shall also be exhibited in any affidavit or declaration which may be required under these Rules as to the validity, terms, physical condition or date of execution of the Will.*** ***(2) Where the Will is written in any language other than English there shall be an English translation thereof, made by a person competent to do so, annexed to the application for the Grant; and the translation shall be verified by the translator…”*** 1. The foregoing Rules when juxtaposed with the Notice of Preliminary Objection, reveal that the issues raised in the Preliminary Objection herein are not pure points of law. They require factual interrogation of the Will to establish whether or not it is compliant with Rules 50, 51 and 52 of the Probate & Administration Rules. 2. This Court also finds that the applicant in the Summons for Revocation of Grant simply states that there exists a valid Will, which means that the succession proceedings herein can potentially be converted from intestacy to testacy. It is impractical to suggest that the Will must comply with the Rules in issue, yet no testacy proceedings have been instituted. 3. This Court finds that the applicant followed the correct procedure in filing the Summons for Revocation of Grant for the Court’s determination on its merits. This Court therefore makes the following orders: 4. **The Notice of Preliminary Objection dated 9th September 2025 lacks merits and it is hereby dismissed with costs to the applicant/respondent.** It is so ordered. **DATED, SIGNED and DELIVERED IN KIAMBU on 19TH day of JUNE 2026. Ruling delivered through Microsoft Teams Online platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:** Mr. Musonye for the objector/respondent (applicant in the PO) Mr. Gatitu for the petitioner/applicant (respondent in the PO) Ms Julia – Court Assistant.