[2022] KEHC 10972 (KLR)

In re Estate of Ben Kinyanjui Muya (Deceased) (Succession Cause 627 of 2006) [2022] KEHC 10972 (KLR) (Family) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10972 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 627 of 2006

MA Odero, J

July 1, 2022

IN THE MATTER OF THE ESTATE OF BEN KINYANJU MUYA (DECEASED) JUDY NJERI MUTUGI.........................................APPLICANT VERSUS SARAH WANJIRU GACHANGI ..................1ST RESPONDENT PETER NJOROGE GITAU .........................2ND RESPONDENT JANE MUTHONI NYOIKE...........................3RD RESPONDENT

Ruling

1. Before this court for determination is the preliminary objection dated November 16, 2021.

2. The applicant herein Judy Njeri Mutugihad filed in court the summons dated July 14, 2021 seeking the following orders:-“1. Thatpending the hearing and determination of the cause, the honourable court be pleased to issue an order, restraining the respondent and/or their brothers, sisters, agents, workers, assigns, employees or anybody else acting on their behest, employment or direction, from interfering with the applicant’s occupation and use of Title No Dagoretti/Uthiru/T.293. 2. That the court be pleased to issue order prohibiting the Respondents and/or their brothers, sisters, agents workers, assigns, employees or anybody else acting on their behest, employment or direction from intermeddling or dealing with the Deceased’s property, Title No. Dagoretti/uthiru/T 293 in any manner whatsoever until the final hearing and determination of the Succession Cause herein.4. That the court be pleased to revoke the register of Title Deed No. Dagoretti/uthiru/T.293 issued to the Respondents herein holding it for themselves and as Trustees for Fred Muya Gitau, Jane Wanjiru Kuru, Margaret Njeri Gitau, Jane Wanja Gitau, Rachael Mwihaki Njenga and John Nganga Gitau.5. Thatthe court be pleased to issue an order directing the Chief Lands Registrar Kiambu County to restore Ben Kinyanjui Muyu (Deceased) as the registered owner of Title No.Dagoretti/uthiru/T.293 to allow for proper distribution of the Deceased’s estate.6. Thatthe court be pleased to give such further directions as it may deem fit and just to grant.7. Thatthe costs of this Application be provided for.”

3. In response thereto the 2nd administrator Peter Njoroge Gitau filed the notice of preliminary objection which was premised upon the following grounds:-“1. That the application is hopelessly misconceived and totally devoid of merit.2. That the application is frivolous3. That the application is a total abuse of the process of court.4. That the Hononorable court lacks jurisdiction to entertain the application.5. The Title Deed in question is not registered in the name of the Deceased, does not form part of his estate and the same is not available for distribution in this cause.6. There is, therefore, no basis for directing anybody to deposit the said Title Deed in court.7. With respect this Honourable court does not have jurisdiction to determine the issue of ownership of land as the family court’s jurisdiction is to distribute those assets which are in the name of the deceased.8. The alleged issue of fraudulent transfer of land is within the jurisdiction of the ELC.9. This Honourable court lacks the jurisdiction to entertain the application as drawn and filed.10. That in light of the foregoing, the application ought to be struck out with costs.”

4. The preliminary objection was canvassed by way of written submissions. The 2nd administrator filed the written submissions dated March 14, 2021 and the supplementary submissions dated May 5, 2022. The Applicant Judy Njeri Mutugi relied upon her written submissions dated April 22, 2022.

Background 5. The Succession Cause relates to the estate of Ben Kinyanjui Muya(hereinafter ‘the Deceased’) who did intestate on September 18, 2005. Following the demise of the Deceased a grant of letters of administration was issued to John Nganga, Racheal Mwihaki and Evanson Gitau (who were the siblings of the Deceased) by Thika Chief Magistrates Court in Succession Cause No. 111 of 2006.

6. The widow of the Deceased then filed a summons for revocation of grant dated May 24, 2006. The summons was heard by Hon Lady Justice Achode who in a judgment delivered on November 26, 2014 revoked the grant issued by the Thika Court. Thereafter the widow Judy Njeri Mutugi sought grant of letters of administration vide the petition dated September 24, 2015. The widow indicated she was the sole survivor and beneficiary of the estate of the Deceased. Amongst the Assets listed in the petition as forming part of the estate of the Deceased was LR Number Dagoretti/Uthiru/T.293 comprising 0. 2.8 Acres (hereinafter the ‘suit land’).

7. Through a consent entered into on November 26, 2019 the parties agreed that the widow Judy Njeri Mutugi and a brother to Deceased Peter Njoroge Gitau be appointed as joint Administrators of the Estate

8. On January 26, 2018, Sarah Wanjiru Gachangi one of the sisters of the Deceased filed a protest against confirmation of the grant issued to the administrators. In said protest, the brothers and sisters of the deceased were listed as survivors/beneficiaries of the estate. That protest is yet to be heard.

Analysis and Determination 9. I have carefully considered this Notice of preliminary objection the grounds filed in opposition thereto as well as the written submissions filed by both parties. The definition of what constitutes a preliminary objection was set out in the celebrated case of Mukisa Biscuit Manufacturing Company Limited v West End Distributors Ltd[1969] EA as follows:-“As 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 to refer the dispute to arbitration. The first matter relates to increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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. The improper practice of raising points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop.” (own emphasis).

10. Closer home, the Supreme Court of Kenya in the case of Independent Electoral & Boundaries Commission v Jane Cheprenger & 2 others [2015] eKLR stated thus:-“The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”

11. Therefore a preliminary objection must raise a pure point of law –one which if determined may dispose of the entire case. The administrators submit that this court has no jurisdiction to determine the matters raised in the application dated July 14, 2021. It is trite law that jurisdiction is everything and without it a court cannot move one step further. In Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] eKLR the Court stated:-“Jurisdiction is everything without it a court of law has no power to make one more step. Where a court of law has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. Acourt of law downs its tools in respect of the matter the moment it holds the opinion that it is without jurisdiction.” (Own emphasis)

12. The bone of contention which gave rise to this preliminary objection was the inclusion by the Administrator of the parcel of land Known as Dagoretti/uthiru/T 293 as one of the assets comprising the estate of the deceased. According to the 2nd administrator the suit land is not registered in the name of deceased, does not form of the estate of deceased and is therefore not available for distribution.

13. In the summons dated July 14, 2021 the widow contends that the suit land belonged to the Deceased and is where the couple set up their matrimonial home. She alleges that the respondents fraudulently caused the transfer of the suit land to themselves in a bid to disinherit the widow of the Deceased. She asks that the court intervene to prevent any further intermeddling with Title No Dagoretti/Uthiru/T 293 and that the Title be restored back to the name of Deceased.

14. The question of whether the suit land forms part of the estate of deceased is not one which this court has the jurisdiction to determine. This court is sitting as a probate court with the jurisdiction to oversee the distribution of the estate of the Deceased to the genuine heirs and beneficiaries of the Estate. In Re Estate of GKK (Deceased)2017 eKLR it was held that -“The primary function of a probate court is distribution of the estate of the dead person.”

15. The 2nd administrator contends that the suit land does not belong to the estate of the deceased. That the same is registered in the names of the respondents as proprietors in equal shares. Indeed the copy of an official search conducted on October 7, 2013 indicates that LR No Dagoretti/Uthiru/T.293 is registered to the respondents. 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).

16. 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 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 [Issue 1]

17. 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 properly brought before a civil court in accordance with the provisions of the Civil Procedure Actand the Civil Procedure Rules. This could mean filing suit at the magistrates’ 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 that court can give effect to it.” (own emphasis)

18. The dispute herein is a dispute relating to ownership of land in question. The suit property is currently not registered in the name of the Deceased and as such cannot be included as part of his estate. This court sitting as a probate courtdoes not have jurisdiction to determine disputes relating to ownership of land. Theapplicant is at liberty to file suit in the ELC where she will have the opportunity to ventilate any claim she may have to the suit land.

19. Accordingly, I find merit in thenotice of preliminary objection dated November 16, 2021. The same is allowed and the notice of motion dated July 14, 2021is hereby struck out. This being a family matter each side will bear its own costs.

DATED IN NAIROBI THIS 1ST DAY OF JULY 2022. ........................................MAUREEN A. ODEROJUDGE