https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6809

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION APPEAL NO. E010 OF 2025** **IN THE MATTER OF THE ESTATE OF JOHN KAMAWIRA KIHIA** ## **JAMES NDUNGU KAMAWIRA…..……................................. … APPELLANT** ## **VERSUS** ## **CHRISTINE WANGUI MUTURI……..….……….….... …… RESPONDENT** **JUDGMENT** 1. This Judgment arises from the ruling and order of Hon. E. Kanyiri, PM dated 15.4.2025 in Karatina PMC Succession Cause No. E274 of 2021. 2. The Ruling arose from the Application dated 16.2.2024 by which the Respondent sought the following relief: The Grant of letters of administration issued to the Petitioner on 21.11.2022 and confirmed on 23.6. 2023 be revoked on the grounds that the proceedings to obtain the grant were defective and the grant was obtained fraudulently by making a false statement. 1. The Respondent also filed another Application dated 22.2.2024 seeking interim order restricting any transaction relating to plot number Karatina Township Block 1/166 pending the hearing and determination of the Application for revocation of grant. 2. The Respondent asserted that the court lacked pecuniary jurisdiction to entertain the matter since the plot was valued at Ksh. 22,000,000/=. 3. The Appellant opposed the Applications. By the Replying Affidavit of sworn on 20.3.2024, it was deposed in material that the Respondent was not a beneficiary or dependant of the estate of the deceased. The Appellant also filed a notice of preliminary objection dated 22.2.2024 by which it was asserted that the court lacked jurisdiction to determine the Applications as they were premised on land ownership within the jurisdiction of the Environment and Land Court. 4. In its impugned ruling, the lower court struck out the cause on the ground that it lacked pecuniary jurisdiction as the subject estate was valued at Ksh. 22,000,000/= outside the jurisdiction of the Magistrate’s Court. 5. Aggrieved, the Appellant lodged the memorandum of appeal dated 7.5.2025. The appeal raised the following material grounds: 6. The learned magistrate erred in law and fact in striking out the suit which was unknown remedy under the law of succession. 7. The learned magistrate erred in law and fact in not considering the valuation report submitted by the Appellant. 8. The learned magistrate erred in law and fact in failing to appreciate that the deceased’s share constituting the estate was half share out of the suit premises. 9. The learned magistrate erred in law and fact in disregarding the Appellant’s objection that the Respondent’s claim arose from ELC Court and not Probate Court. 10. The learned magistrate erred in law and fact in failing to find that the Respondent was not a beneficiary or dependant of the deceased and so lacked locus standi. **Submissions** 1. The Appellant filed submissions dated 13.6.2026. It was submitted that the Law of Succession Act did not provide for striking out a succession case. The only remedies contemplated under the Act include rectification, confirmation, revocation, or annulment of grants, distributions, and challenges to the validity of grants. She cited **Josephine Wambui Wanyoike v Margaret Wanjira Kamau & another** [2013] KECA 443 (KLR), where it was submitted the court found that by striking out the case, the trial Magistrate acted in a manner not provided for under the Law of Succession Act. 2. It was also submitted that the trial court erred in fact by stating that the valuation was not on record. This failure led the court to rely solely on the Respondent’s valuation of Kshs. 22,000,000/= which assessed the entire land parcel, without recognizing that the estate comprised only a half-share. Reliance was placed on **Ocean Freight Shipping Co. Ltd V. Oakdale Commodities Ltd** (1997) eKLR Civil Appeal No. 198 of 1995) **Ocean freight Shipping Company Limited v Oakdale Commodities Limited** [1997] KECA 222 (KLR). 3. The Appellant also submitted that the finding of lack of pecuniary jurisdiction was based on reliance on a valuation of the entire portion of land and the failure to take into account the Appellant’s valuation which showed the half share that was subject of the deceased’s estate. 4. The Respondent appears to have filed submissions. However, the document lodged in the CTS cannot open and the curt is unable to deal with it at this point. **Analysis** 1. This Appellant challenged the finding of the lower court that it lacked pecuniary jurisdiction. An appeal of this nature may raise pure points of law or mixed points of law but points of law it is. 2. Then what constitutes a point of law? In **Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others,** (2014) eKLR, the court stated as doth: - “4. Although the phrase ‘a matter of law’ has not been defined by the Elections Act, it has been held in Timamy Issa Abdalla Vs Swaleh Salim Swaleh Imu & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, Makhandia & Sichale, JJA) of 13.01.2014 that a decision is erroneous in law if it is one to which no court could reasonably come to, citing Bracegirdle vs Oxney (1947) 1 All ER 126. See also Khatib Abdalla Mwashetani Vs Gedion Mwangangi Wambua & 3 Others, Malindi Civil Appeal No. 39 Of 2013 (Court Of Appeal), (Okwengu, M'inoti & Sichale, JJA) of 23.01.2014 following AG vs David Marakaru (1960) EA 484.” 1. To this court, even where the matter involves application of judicial discretion, such discretion though unfettered must be exercised in accordance with the law. This Court therefore persuaded that the exercise of judicial discretion is a point of law. In **Peter Gichuki King'ara Vs Iebc & 2 Others**, Nyeri Civil Appeal No. 31 Of 2013 (Court Of Appeal) (Visram, Koome & Odek, JJA) Of 13.02.2014, the Court of Appeal held as follows: - “it was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence with the caveat that the appeal court did not see the witness demeanour is an issue of law.” 1. A point of law is similar to a preliminary point of law but has a broader meaning. Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of **Oraro vs Mbaja** [2005] eKLR: “I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point. 1. Whereas the Appellant posited that the court invoked an erroneous pecuniary jurisdiction, the Appellant did not dispute that the size of the parcel of land subject to the succession was valued at Ksh. 22,000,000/=. The Appellant’s position was that the deceased’s share in the parcel was less and therefore it could not be taken that the entire parcel was under succession. 2. Whereas the Appellant’s suggestion was a matter of fact that could be determined only while analyzing the interest that the deceased held in the entire suit premises, this could not be done without dealing with the entire premises that was arguably valued at Ksh. 22,000,000/=. This is because the interest of the deceased was not ascertainable without looking at the entire parcel. However, the question of the ownership of the suit premises that was said to be in common owned as between John Kamawira Kihia and the deceased was not an issue to be properly raised before the succession court. Musyoka J, in re Estate of Andashe Munyeti (Deceased) [2021] eKLR stated as follows: … The promulgation of the Constitution, 2010, on 27th August 2010, had one critical consequence, the taking away of jurisdiction from the High Court, with respect to matters relating to land. That comes out very clearly from Articles 162(2) and 165(5) of the Constitution. Parliament passed a law that established the Environment and Land Court. The Land Registration Act and the Land Act, which govern transmission and land registration, carry provisions that make it clear that where disputes or questions or the need for certain actions arise, with respect to issues that are regulated or governed by the two statutes, such as transmission and land registration, then the court to address them is the Environment and Land Court and any subordinate court vested with jurisdiction. These provisions are in sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act. 1. Fundamentally, the Court could not delve into the question of who owned what share out of parcel number Karatina Town Block 1/166 measuring 0.0301 ha as that was a claim under Section 13 (2) (a) of the Environment and Land Court Act. Article 165 (5)2 of the Constitution, it is provided doth: The High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162. 1. The lower court siting as a succession court reflects the powers of the high court subject to pecuniary jurisdiction of the individual court. it must be understood that that jurisdiction is everything. The court is bound to take jurisdiction where it has and down its tools where it does not have jurisdiction. My senior brother Nyarangi JA, as then he was, immortalized these words, In Owners of the Motor Vessel **“Lillian S” v Caltex Oil (Kenya) Ltd** [1989] eKLR, Nyarangi JA, as he then was stated as doth; “With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. 1. Therefore, according to the pleadings by the Appellant as contained in the petition for letters of administration and the affidavit in support thereof dated 30.8.2021 as well as the summons for confirmation of grant dated 5.6.2023, the Appellant’s deceased father who was the deceased in the succession cause was entitled to half share in the suit premises which the Appellant sought to be distributed to him in common with Ivy Wairimu Mathee and Ann Wanjeri Maina. 2. Whether this was correct was not a matter for determination by the succession court. The Appellant was bound by her pleadings and the court was also to be guided by the pleadings before it. The court was not entitled to consider the entire parcel herein as the estate of the deceased without such pleading. In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of **Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR**found and held as follows in an election petition: - “In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’” 1. The lower court erred in not recognizing that the Appellant’s succession suit was not to be pegged on the entire parcel of land measuring 0.0301 ha as the deceased herein owned the said parcel in common with another person described as John Kamawira Kihia and then there was a claim by the Respondent. 2. To contextualize the dispute, part of what most estates dela with are shares in listed companies. The court giving aware Safaricom PLC shares or KCB ltd shares, does not have regard to the total value of the total shareholding held at the institutions. The court has regard to shares that relate to the deceased in this care the succession court is concerned with the deceased’s net estate. 3. The application of the valuation of Ksh. 22,000,000/= in respect of the succession proceedings was not justified and the court ought not to have struck out the succession cause on that ground. The net estate is comprised in ½ share or thereabouts this are valued less that Ksh. 11.000,000/=. 4. Based on the foregoing, I fault the finding of the lower court for going for not just the gross value for the building but also properties outside the net value of the estate. 5. The last questions the power to strike out pleadings in a succession cause. The decision of Nyarangi JA, in the case of In **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [Supra],** applies to what they ought to do in case of doubt on jurisdiction, this is to down their tools and the wait for the aggrieved or any party to move the High Court. Section 47 of the Law of Succession Act provides a s follows: The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.. 1. Unlike civil cases, when a magistrate is sitting as a succession court, he is representing the high court. If it has no jurisdiction, then the high court must be oved to take over. Therefore, the lower court has no power to strike out on the basis of pecuniary jurisdiction. That is within the province civil court. In this contest the appeal succeeds. 2. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows: (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 1. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited** [2018] KECA 158 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: "It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others** [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: 18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation 22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 1. In the circumstances of this case, costs follow the event, I am inclined to award the Appellant costs as the Respondent was not a beneficiary or dependant of the deceased. Her claim was based on a in common owned interest in the suit premises. a sum of Ksh. 75,000/= will suffice. **Determination** 1. In the upshot, I make the following Orders: 2. The Appeal is merited and allowed. The Ruling and Order of the lower court dated 15.4.2025 is set aside. In lieu thereof the preliminary objection dated is dismissed with costs. 3. For the avoidance of doubt, the lower court sitting as a succession court has no jurisdiction to delve into the extent of ownership rights in respect of parcel no. Karatina Town Block 1/166 as between the deceased, the Respondent and Josiah Njogu Githomi or other third-party claims. 4. The Appellant shall have costs of the appeal Ksh. 75,000/- payable within 30 days failing of which execution may issue. 5. The court to deal with the issues before her without delving into ownership issues. 6. Directions on 18.06.2026 in the lower court. **DELIVERED, DATED and SIGNED** at Nyeri, Virtually on this **13th day of May 2026.** Judgement delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Ms. Ngugi for the Appellant Ms. Wanjira for the Respondent Court Assistant: Martin