[2024] KEHC 16222 (KLR)
The court found that the core issue before it was whether the objector is a beneficiary of the estate of the deceased and whether the administrators should have considered her as such. This is a matter squarely within the jurisdiction of the High Court sitting as a probate court under the Law of Succession Act. The...
Source-derived case information.
- Citation
- [2024] KEHC 16222 (KLR)
- Parties
- Applicant: Esther Muthomi Wara; Respondent: Joseph Gitau Muthoni; Respondent: John Kuria Maina
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 261 of 2007
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- HI Ong'udi
- Legal Topics
- Succession Proceedings, Revocation of Grant, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Muthomi Wara
Applicant
Joseph Gitau Muthoni
Respondent
John Kuria Maina
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to determine the objector's claim regarding entitlement to the deceased's estate.
- 2 Whether the objector is a beneficiary of the estate of the late Cecilia Muthoni Gitau and should have been considered by the administrators.
Ratio Decidendi
The court found that the core issue before it was whether the objector is a beneficiary of the estate of the deceased and whether the administrators should have considered her as such. This is a matter squarely within the jurisdiction of the High Court sitting as a probate court under the Law of Succession Act. The court distinguished this from disputes over title to land, which would fall under the Environment and Land Court. Since the objector's claim was about entitlement as a beneficiary and not about the validity of title to land, the preliminary objection on jurisdiction was dismissed. The summons for revocation of grant was allowed to proceed to hearing on its merits.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 6th December, 2023 is dismissed.
- Parties to proceed to take a hearing date for the summons for revocation of grant dated 27th July, 2022.
Full Case Text
Judgment text and source record
29 paragraphs
In re Estate of Cecilia Muthoni Gitau - Deceased (Succession Cause 261 of 2007) [2024] KEHC 16222 (KLR) (17 December 2024) (Ruling)
Neutral citation: [2024] KEHC 16222 (KLR)
Republic of Kenya
In the High Court at Nakuru
Succession Cause 261 of 2007
HI Ong'udi, J
December 17, 2024
IN THE MATTER OF THE ESTATE CECILIA MUTHONI GITAU – DECEASED
Between
Esther Muthomi Wara
Objector
and
Joseph Gitau Muthoni
1st Petitioner
John Kuria Maina
2nd Petitioner
Ruling
1. The Objector Esther Muthoni Wara filed a summons for revocation/annulment of grant. The same is dated 27th July, 2022 and filed on 1st August, 2022. It was responded to vide a replying affidavit sworn by Joseph Gitau on 18th November, 2022. The Objector on 20th February, 2023 filed a further affidavit sworn on even date. Directions were issued on 16th March, 2023 by Chemitei J to the effect that the summons for revocation would be disposed of by way of viva voce evidence. Further directions have been issued on filing and service of witness statements which has been complied with. The objection was fixed for hearing for 7th December, 2023.
2. A Preliminary objection dated 6th December, 2023 was filed by the petitioners on 7th December, 2023 on the following grounds:i.This honourable court has no jurisdiction to entertain the alleged dispute as the same falls within the preserve of the Environment and Land Court by virtue of Articles 162(2) and 165(5) of the Constitution of Kenya 2010 and is not among disputes contemplated under the Law of Succession to be handled by the High Court.ii.That the reliefs being sought by the Objector cannot lie against the Respondentsiii.The Objector’s application is to that extent incompetent, bad in law, fatally defective and otherwise an abuse of the court process and should be struck out with costs to the Respondents.
3. The preliminary objection was heard by way of written submissions. They are dated 30th January, 2024 and 15th July, 2024 respectively.
4. It is the argument of the petitioners/respondents that the objector’s issue relates to the ownership of the suit, land and validity of the title deed issued to the late Cecilia Muthoni Gitau. They therefore submit that the matter which relates to title to land falls under the jurisdiction of the Environment and Land Court (ELC) and not this court sitting as a probate court.
5. On the other hand, the objector argues that her claim is that she is entitled to half share of the deceased’s estate, in place of her late mother Annah Wangu Wara.
6. I have carefully considered the summons for revocation, the preliminary objection, both parties submissions and all other documents filed; I find the issue for determination to be whether the objector is a beneficiary of the estate of the late Cecilia Muthoni Gitau and whether the administrators herein ought to have considered her as such.
7. This issue squarely falls under the jurisdiction of this court. The issue of title to land is not what is before this court for trial.
8. Without getting into uncalled for issues, I have come to the conclusion that the summons for revocation should proceed to hearing which will address the issues being raised herein.
9. The preliminary objection is hereby dismissed.
10. Parties should now proceed to take a hearing date for the summons of revocation of grant dated 27th July, 2022, as per the directions issued on 16th March, 2023 by Chemitei J. Each party to bear its own costs.
11. Orders accordingly.
DELIVERED VIRTUALLY, DATED AND SIGNED THIS 17THDAY OF DECEMBER, 2024 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE