[2023] KEHC 24505 (KLR)

In re Estate of Laban Njenga Mundia (Deceased) (Succession Cause 2777 of 2008) [2023] KEHC 24505 (KLR) (Family) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24505 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2777 of 2008

MA Odero, J

October 27, 2023

IN THE MATTER OF THE ESTATE OF LABAN NJENGA MUNDIA (DECEASED)

Between

Emmanuel Sakim Mpusia

1st Objector

Kevin Lenana Lempaashe

2nd Objector

Suing as Representatives of the Estate of the Late Mokorian Ole Mpaashe

and

Alvin Kamande Njenga

1st Respondent

Sophie Kabura Njenga

2nd Respondent

Derrick Kariuki Njenga

3rd Respondent

Jane Wanjiku Beatrice

4th Respondent

Lucie Wanjiku Njenga

5th Respondent

Ruling

1. Before this court for determination is the Preliminary Objection dated 23rd January 2023 by which Lucia Wanjiku Njenga, Derrick Kariuki Njenga and Jane Wanjiku Beatrice (the administrators) object to the affidavit of protest against confirmation of grant application filed by Alvin Kamande Njenga (hereafter “the objector”) dated 5th July 2022.

2. The Preliminary Objection is based on the following grounds:-“1. This Preliminary Objection is filed in compliance to directions by court, Honourable Lady Justice Maureen Odero on 23rd January 2023.

2. This Preliminary Objection is pursuant to a matter of fact while in regular use, Preliminary Objection is brought on a matter of law.

3. That the purported objector filed an affidavit objecting to confirmation of grant in this matter dated 12th day of July 2022.

4. That substance of the objection was land parcel Kajiado/Kaputiei-North/1913 wherein the Objector lays claim to an interest thereof.

5. That this is a fact that the summons for confirmation of grant in this matter do not feature the property Kajiado/Kaputiei-North/1913 at all or even in reference.

6. That the property Kajiado/Kaputiei-North/1913 does not form part of the estate herein and it is actually registered in favour of Esther Njeri Njenga (deceased).

7. That in her replying affidavit dated 14th January 2022, Lucie Wanjiku Njenga stated clearly and succinctly that the property Kajiado/Kaputiei-North/1913 was not included in the Summons for Confirmation or schedule for distribution.

8. That the Objector herein ought to pay costs for adjournment in this matter wherein he has continued to delay confirmation of grant without any justification.

9. That the objection herein ought to be dismissed with costs to the administrators and beneficiaries of the estate herein.

10. That matter of fact should only be brought to court where there is reason and justification, but not for egotistic purpose to prove capacity by a party to frustrate another through court.

11. That as an officer of the court, it is my duty to point out where facts are misleading or totally erroneous in order to save judicial time.”

3. The Preliminary Objection was canvassed by way of written submissions. The Administrators filed written submissions dated 10th February 2023 whilst the Objector relied on submissions dated 17th March 2023.

Background 4. This Succession Cause relates to the estate of Laban Njenga Mundia (hereinafter ‘the Deceased’) who passed away intestate on the 9th November 2006 in Nairobi. The deceased was survived by the following:-i)Esther Njeri Njenga – widow (deceased).ii)Jane Wanjiku Njengaiii)Josephine Nduta Njengaiv)Judith Wanjiru Njengav)Bancy Gathoni Njengavi)Derrick Kariuki Njengavi)Alvin Kamande Njenga

5. Grant of Letters of Administration Intestate was made to the widow, Esther Njeri Njenga on 23rd September 2009. The said Grant was confirmed on 10th November 2010.

6. Upon the demise of Esther Njeri Njenga, the beneficiaries filed a consent dated 10th February 2022 appointing Lucie Wanjiku Njenga, Derrick Kariuki Njenga and Jane Wanjiku Beatrice as new administrators of the estate. The consent was adopted as an order of the court on 11th February 2022. A fresh Grant of Letters of Administration Intestate was issued to them on 11th February 2022.

7. Thereafter, the administrators filed summons for confirmation of grant dated 21st March 2022. Alvin Kamande Njenga, a beneficiary of the estate filed an affidavit of protest against confirmation of grant dated 5th July 2022. This prompted the administrators to file the present preliminary objection.

Analysis and Determination 8. I have considered the submissions and authorities cited by counsels on the preliminary objection. The gist of the Preliminary Objection revolves around the property known as Kajiado/Kaputiei-North/1913 which the objector in his protest against confirmation of grant stated had not included in the list of assets forming part of the deceased’s estate. The administrators in their preliminary objection stated that the property was not included in the list of assets because of a pending case being Kajiado ELC Cause No. 2 of 2022.

9. The definition of a Preliminary Objection was given in the case of Mukisa Biscuits Manufacting Company Ltd – Vs West End Distributors Ltd [1969] EA where the court stated as follows:-“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 the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submissions that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.“........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.”

10. In Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR, the Supreme Court of Kenya stated as follows:-“a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”

11. Therefore, in order for a preliminary objection to succeed the following tests must be satisfied:-(i)The Preliminary Objection should raise a pure point of law.(ii)The Preliminary Objection must be argued on the assumption that all the facts pleaded are correct.(iii)The Preliminary Objection cannot be raised if any fact is to be ascertained or if what is being sought is the exercise of judicial discretion.(iv)A valid Preliminary Objection ought if successful dispose of the entire suit.

12. Therefore, a genuine and proper Preliminary Objection can only raise points of law and must not itself derive its foundation on facts or information which stands to be tested by normal rules of evidence.

13. The question of whether or not the suit land forms part of the estate of the Deceased and the question whether the said property is the subject of a case in the Environment and Land Court are not pure points of law. These are matters of fact which can only be determined by way of evidence adduced by the parties.

14. As such I find no merit in this Notice of Preliminary Objection. The same is hereby dismissed in its entirety. Costs to be met by the Administrators.

DATED IN NAIROBI THIS 27TH DAY OF OCTOBER, 2023. …………………………………..MAUREEN A. ODEROJUDGE