https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8342

In re Estate of Abong’o (Deceased) (Succession Cause E005 of 2025) [2026] KEHC 8342 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 8342 (KLR) Republic of Kenya In the High Court at Migori Succession Cause E005 of 2025 ACA Ong’injo, J May 14, 2026 IN THE MATTER OF THE ESTATE OF JOSHUA OWINO ABONG’O – (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR REVOCATION/ANNULMENT OF GRANT Between Joel Omino Abongo Applicant and Thadayo Chacha Abongo Respondent and Mohammed Rashid Gab Interested Party Ruling 1.The Intended Interested Party filed application dated 28th November 2025 seeking leave to be joined in the application dated 27th August 2025 before the inter partes hearing. 2.The Intended Interested Parties reasons are that:1.He is the registered proprietor of Land Parcel No. Suna East/Wasweta 1/5086.2.The applicant herein has surreptitiously filed this instant application seeking the cancellation of the said title without any reference to the said registered proprietor contrary to the audi alteram partem rule.3.The applicant is intending on revoking a grant contained in a mother file of Migori High Court Succession Cause No. 272 of 2015 vide this separate file, which is not tenable in law and rules of procedure and set precedent.4.The Petitioner/Respondent is either seemingly unaware of the application precipitating this instant application or is not adverse to the same orders being issued or worse, the parties herein are in collusion to defeat the proprietary rights of the intended interested party.5.The Respondent will not be prejudiced in any way if this application is granted. 3.The applicant made this application expeditiously as soon as he got a hold of the information as to the surreptitious proceedings herein. 4.The Applicant in application dated 27th August 2025 then filed a preliminary Objection dated 2nd December, 2025 to the effect that:-1.That the Intended Interested Party lacks locus standi to be enjoined in or to participate in revocation of grant proceedings under Section 76 of the Law of Succession Act, as he is neither a beneficiary, nor a dependant, nor a person with any legally recognizable interest in the estate of the deceased.2.That a purchaser from a person holding a contested or impugned grant is, in law, a stranger to the estate, and his rights, if any, lie against the vendor and not within succession proceedings, and cannot form a basis for joinder.3.That under well-settled jurisprudence, purchasers have no right to participate in revocation proceedings.4.That the intended Interested party’s application has invoked provisions of law that are inapplicable to Succession matters. The law of Succession Act expressly ousts the applicability of the Civil Procedure Act and the Civil Procedure Rules in Succession proceedings. The reliance on non- permitted provisions render the application defective, incompetent and unsustainable in law.5.That the Intended Interested Party’s application is therefore incompetent, misconceived, bad in law, and amounts to an abuse of the court process, intended only to delay or derail the determination of the Applicant’s revocation application.6.That the matters raised in this objection are pure points of law, requiring no ascertainment of facts, and fall squarely within the principles established in ThatMukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA 696That. 7.The Applicant therefore prayed that the Intended Interested Party’s application dated 28th November 2025 be struck out with costs.The Preliminary Objection was canvassed by way of written submissions.The Applicant’s submissions are dated 29th January 2026 and the Respondent’s submissions are dated 1st January 2026. 8.This court has considered the Preliminary Objection together with the rival submissions and the issue for determination is whether the Applicant has satisfied the court for grant of the orders to strike out the Intended Interested Party’s application. 9.The law on Preliminary Objections is now well settled. In the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the Court stated that a Preliminary Objection consists of a pure point of law which is argued on the assumption that all the facts pleaded by the opposite side are correct and which, if successful, may dispose of the suit without the need to ascertain facts through evidence. A Preliminary Objection cannot be raised where the court is called upon to investigate facts or exercise judicial discretion. 10.The gravamen of the Applicant’s objection is that the Intended Interested Party lacks locus standi in succession proceedings since he is neither a beneficiary nor a dependant of the deceased and that as a purchaser, he is a stranger to the estate. The Applicant further contends that the Intended Interested Party improperly invoked provisions of the Civil Procedure Act and Rules which are inapplicable in succession proceedings. 11.This court has considered the nature of the Intended Interested Party’s application. The Intended Interested Party claims to be the registered proprietor of Land Parcel No. Suna East/Wasweta I/5086 and contends that the Applicant seeks cancellation of his title without affording him an opportunity to be heard. The Intended Interested Party therefore asserts that the orders sought in the revocation application are likely to directly affect his proprietary interest in the suit property. 12.Whether or not the Intended Interested Party lawfully acquired the suit property, whether he is indeed a purchaser for value, whether his title is liable to cancellation, and whether his interest is sufficiently proximate to warrant participation in the proceedings are matters that inevitably call for ascertainment of facts and examination of evidence. Such issues cannot properly be determined through a Preliminary Objection. 13.Further, the question whether a purchaser or registered proprietor may be heard in revocation proceedings has been the subject of judicial consideration, with courts increasingly recognizing that where orders sought may directly affect proprietary rights, the dictates of the rules of natural justice, particularly the audi alteram partem principle, require that such a party be accorded an opportunity to be heard before adverse orders are made. The issue therefore is not a straightforward pure point of law capable of disposing of the application without factual interrogation. 14.As regards the objection that the Intended Interested Party invoked provisions of the Civil Procedure Act and Rules, the court notes that procedural lapses or invocation of wrong provisions of law do not necessarily render an application incompetent where the court is otherwise properly moved and substantive justice can still be attained under Article 159(2)(d) of the Constitution and Rule 73 of the Probate and Administration Rules. That issue too does not, in the circumstances herein, dispose of the application summarily. 15.Accordingly, this court finds that the issues raised in the Preliminary Objection are intertwined with contested facts and the merits of the Intended Interested Party’s application for joinder. The objection therefore fails the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. 16.The Preliminary Objection dated 2nd December 2025 is therefore devoid of merit and is hereby dismissed with costs in the cause. The Intended Interested Party’s application dated 28th November 2025 shall proceed for hearing on its merits. 17.Mention on 28th May 2026 for directions in the applications dated 7th August 2025 and 28th November 2025. DATED, SIGNED AND DELIVERED AT MIGORI THIS 14TH DAY OF MAY, 2026.HON. ANNE ADWERA- ONG’INJO JUDGE