https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5139

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **E & L CASE NUMBER E025 OF 2026** ROSE KATHAMBI JOHN……………………………..………1ST PLAINTIFF GERALD KOOME KABURU…………………………...……2ND PLAINTIFF *[suing as legal representative of the estate of Kinaitore deceased]* VERSUS DOUGLAS MUTUMA KABURU…………….….…………1ST DEFENDANT MERCY KARIMI KABURU………………….…..…...……2ND DEFENDANT LYDIA NJIRU………………………………..……….……..3RD DEFENDANT **RULING** 1. The Plaintiffs herein approached the court vide Plaint dated the 15.07.2026 and wherein the plaintiffs sought various reliefs, touching and concerning L R Nos. Ntima/Igoki/12702 , 12703, 12704, 12705 and 12706, respectively, which are subdivisions arising from LR. No. Ntima/Igoki/1673 [otherwise referred to as the original parcel of land]. 1. The reliefs sought vide the Plaint are: 2. *A* ***declaration that land parcel number Ntima/Igoki/1673 is customary land and the Defendants holds. LR Nos. NTIMA/IGOKI/12702, 12703, 12704,12705 and 12706.*** ***[which are subdivisions of LR. No. Ntima/Igoki/1673] in trust of the plaintiffs.*** 1. ***A declaration that 1st Plaintiff and Salome Kinaitore [now deceased] are entitled to two-third [2/3] share of land parcel No. Ntima/Igoki/1673.*** 2. ***An order directing the Land Registrar, Meru to cancel title deeds over LR. Nos. Ntima/Igoki/12702,12703,12704,12705 and 12706 and revert the same to the original title known as LR. No. Ntima /Igoki/1673.*** 3. ***An order directing the Land Registrar, Meru to subdivide Land parcel No. Ntima/Igoki/1673 into three [3] equal portions and issue title deeds ad follows:*** 4. ***One of the portions to the 1st Plaintiff solely;*** 5. ***Second portion to the estate of Salome Naitore [now deceased]*** 6. ***Third portion to 1st, 2nd and 3rd defendants jointly.*** 7. ***An order directing the Defendants to surrender to the Land Registrar, Meru the original title deeds to Land parcel Nos. Ntima/Igoki/12702,12703,12704,12705 and 12706 for cancellation and in default, their production be dispensed with.*** 1. Contemporaneously, the plaintiffs also filed an application dated the 15.07.2026 and wherein the plaintiffs sought orders of temporary injunction and inhibitions to restrict any dealings and or transactions affecting the suit properties. 2. Upon being served with the plaint and the application dated the 15.07.2026, the defendants herein duly entered appearance and filed a notice of preliminary objection dated the 24.07.2026. The defendants disputed the jurisdiction of this court to entertain and adjudicate upon the issues underlining the subject matter. The grounds underpinning the preliminary objection are: 3. ***The Plaint and notice of motion dated 15.07.2026 and the entire suit are fatally and incurably defective.*** 4. ***That this Honourable court lacks jurisdiction to entertain the suit and the application filed herein.*** 5. ***That the subject matter falls under the purview of the High Court and to be specific under the High Court Succession Cause No. 243 of 2008.*** 6. ***That this suit has been brought to this court in clear disregard of the law and is an abuse of the due process of court.*** 7. The matter came up for the hearing of the application dated the 15.07.2026 on the 28.07.2026. When the matter was called out, learned counsel for the defendants pointed out that same had filed and served a notice of preliminary objection dated the 24.07.2026. Furthermore, learned counsel intimated to the court that the preliminary objection spoke to the jurisdiction of the court and thereafter invited the court to hear the preliminary objection beforehand. 8. Learned counsel for the plaintiffs confirmed that same had been duly served with the notice of preliminary objection. In addition, counsel intimated that she was ready to proceed with the preliminary objection. Besides, counsel sought directions of the court as pertains to the hearing and disposal of the preliminary objection. 9. The preliminary objection was thereafter canvassed vide oral submissions. Learned counsel for the defendants highlighted and canvassed two [2] key issues. The issues are: This court is devoid of jurisdiction to entertain and adjudicate upon the subject dispute; and the suit does not disclose any reasonable cause of action as against the defendants. 10. Regarding the first issue, learned counsel for the defendants has submitted that the suit properties, which are sought to be impeached, were birthed by the succession process wherein a certificate of confirmation of grant was issued. In particular, it was contended that the suit property was previously registered in the name Charity Kathira [now deceased]. Moreover, it was contended that following the death of the deceased, the estate was succeeded by Douglas Mutuma Kaburu – the 1st defendant. 11. Additionally, it has been submitted that the grant of letters of administration was thereafter confirmed leading to the issuance of a certificate of confirmation of grant and wherein the estate of the deceased was distributed in favour of the defendants. In this regard, it has been contended that the suit properties were created and are underpinned by lawful court orders. 12. Insofar as the suit properties are contended to have been birthed by the succession proceedings, it has been submitted that this court is divested of jurisdiction to entertain the current suit. In addition, it has been submitted that any orders issued by this court would be tantamount to countermanding the orders of the High Court. Learned counsel posited that such a scenario is legally unacceptable. 13. Secondly, learned counsel for the defendants has also submitted that the plaintiffs herein had filed/lodged an objection in the succession matter. It was submitted that the objection was heard and dismissed. To this end, learned counsel has submitted that the current suit does not disclose any reasonable cause of action. 14. Furthermore, it has been contended that insofar as the objection raised by the plaintiffs was heard and dismissed, the instant suit is therefore barred by the doctrine of Res Judicata. To this end, learned counsel for the defendant have invoked the provisions of **Section 7 of the Civil Procedure Act, Chapter 21 Laws of Kenya.** 15. Learned counsel for the plaintiffs has opposed the preliminary objection. Learned counsel has highlighted three [3] key issues. The issues are: The dispute beforehand, touches on and concerns customary trust; the Environment and Land Court is the only forum clothed with jurisdiction to entertain such disputes; and the High Court is divested of jurisdiction to entertain disputes which are exclusively reserved for the Environment and Land Court. 16. Regarding the first issue, learned counsel for the plaintiffs has submitted that the subject suit touches on and concerns the plea of customary trust. In particular, learned counsel cited the provisions **of Section 28 [b] of the Land Registration Act, 2012** and thereafter invited the court to find and hold that the dispute falls within the purview of the Environment and Land Court. 1. Secondly, learned counsel for the plaintiff has submitted that even though the plaintiff[s] filed /lodged an objection before the High Court and which objection was heard and dismissed, the High Court was not vested with the jurisdiction to interrogate the question of trust. In any event, it has been submitted that the plaintiffs herein were/are not direct heirs of the estate of the deceased. 2. Insofar as the Plaintiffs are not the direct heirs of the deceased, it was submitted that the Plaintiffs claim could therefore, not be canvased and suitably dealt with, before the High Court. 3. Thirdly, learned counsel for the plaintiffs’ indeed filed an objection before the High Court and *vide* Succession Cause Number 243 of 2008. In addition, counsel has conceded that the objection was heard and dismissed by the High Court. Nevertheless, learned counsel has contended that the fact that the objection was heard and dismissed by the High Court, does not divest this court of the requisite jurisdiction to entertain and adjudicate upon the subject matter. 4. Arising from the foregoing, learned counsel for the plaintiffs has contended that the preliminary objection by the defendants, does not have any merits. The court has been invited to find and hold that the preliminary objection is premature and misconceived. 5. Learned counsel for the plaintiffs’ has thereafter cited the decision in the case of **Diasproperty Limited & 5 others v Githae & 10 others [2024] KECA 318 (KLR).** 6. Having reviewed the notice of preliminary objection; and upon consideration of oral submission[s] made by /on behalf of the respective advocates, one [1] key issue emerge for determination. The issue is: whether this court is seized of the requisite jurisdiction to entertain the suit and to grant the reliefs sought or otherwise. 7. It is common ground that the original property, namely; LR No. Ntima/Igoki/1673, belonged to and was registered in the name of Charity Kathira [now deceased]. It is also common ground that the estate of the deceased was the subject succession proceedings vide Meru HCC Succession Cause No. 243 of 2008. 8. Additionally, it is not in dispute that the succession cause was heard and concluded. In particular, the high court proceeded to and issued a certificate of confirmation of grant on the 08.02.2010. Thereafter, an application was made for rectification of the confirmed grant. Suffice it to state that the application for rectification was heard and allowed. To this end, a rectified certificate of confirmation of grant was issued on the 18.12.2022. 9. At the foot of the rectified certificate of confirmation of grant, the High Court distributed the original property thus: 10. **Patrick Kithinji Kaburu- 1/3 share** 11. **Mercy Karimi Kaburu** 12. **Lydia Njiiru Kaburu 1/3** 13. **Douglas Mutuma Kaburu- 1/3** 14. It is also important to highlight that the plaintiffs herein filed an objection to the confirmation of grant and the said application was heard and dismissed. The plaintiffs herein did not appeal the dismissal of the objection. 1. It appears that upon the dismissal of the objection, the High Court proceeded to and confirmed the grant of letters of administration. It is the confirmation of the grant that culminated into the transmission of the suit properties to and in favour of the defendants. 2. From the foregoing background, what becomes apparent is that the suit properties were birthed by the succession cause. The registration of the suit properties is underpinned by a certificate of confirmation of grant, which has not been impeached. Moreover, the certificate of confirmation of grant attest[s] to the nature of the rights of the beneficiaries. 3. I have looked at the certificate of confirmation of grant, which is alluded at the foot of the plaint and which equally forms part of the annextures attached to the affidavit in support of the application. No where is it shown that the suit properties are to be held on trust. 4. The question that does arise is whether this court, is seized of the jurisdiction to declare the cancellation of the suit properties and thereafter direct the re-distribution thereof, in the manner posited/captured at the foot of the plaint. 5. I am afraid that the impeachment of the certificate of titles, over and in respect of the suit properties, in the manner posited by the plaintiffs, would be tantamount to revoking the certificate of confirmation of grant issued by the High Court, through the back door. In addition, I hold the view that the grant of the orders sought, shall be tantamount to superintending the proceedings before and the decisions of the High Court. Such a scenario is legally unacceptable. 6. It is not lost on me that the plaintiffs herein filed an objection before the High Court. The objection by the Plaintiffs, no doubt, raised the same issues like the ones beforehand. If the plaintiffs were not satisfied, then it behooved the plaintiffs to pursue an appeal. However, no such appeal was filed. 7. Furthermore, I hold the view that upon the conclusion of the succession cause, the original property, which was thereafter distributed was confirmed to be the “Free Property” of the deceased. In this regard, any decision to the contrary, would equally amount to appealing the decision of the High Court through the back door. 8. Simply put, in coming to the conclusion that the original property was available for distribution to the beneficiaries of the estate, the High Court firmed the position that the original property was the “Free Property” of the deceased. 9. I wish to point out that the plaintiffs herein had the requisite opportunity to halt the succession proceedings in respect of the original property and thereafter to canvass their claim [whatever the colour] in accordance with rule 41 of the Probate and Administration Rules. However, the plaintiffs did not seize the opportunity. In this regard, the opportunity passed by and the plaintiffs’ claims [if any], in my view, were overtaken by events. 1. I wish to point out that to entertain the subject suit would technically, lead to impugning the certificate of confirmation of grant that was issued by the High Court. In this regard, I will then have set aside the said certificate of confirmation of grant, albeit without the requisite jurisdiction. I am afraid such an endeavor is antithetical to the rule of law. 1. In the case of **Kenya Hotel Properties Limited v Attorney General & 5 others [2022] KESC 62 (KLR),** the supreme court discussed the rule of the thumb as pertains to whether Judges of coordinate jurisdiction, can set aside the decision of the other. 2. The apex court stated thus: ***“As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves. Again, we take cognizance of our finding in the***[***Samuel Kamau Macharia***](http://kenyalaw.org/caselaw/cases/view/82994)***case where we held that: “A court jurisdiction flows from either the***[***Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the***[***Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (applicant), Constitutional Application Number 2 of 2011. Where the***[***Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.” (emphasis supplied).*** 1. In my humble view, this court is divested of jurisdiction to entertain and adjudicate upon the subject dispute, whose adjudication, would no doubt, translate into impugning the certificate of the confirmation of the grant, albeit through the back door. Jurisdiction is everything. Without jurisdiction, the court of law is enjoined to down its tools. 2. In the case of **In the Matter of the Interim Independent Electoral Commission (Applicant) [2011] KESC 1 (KLR)** the supreme court underscored the position thus: ***“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“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.”*** ***30.The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours* to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”** **Conclusion:** 1. The Plaintiffs’ approached this court seeking a plethora of reliefs. The net effect of the reliefs sought by the plaintiffs, was technically to impeach the certificate of confirmation of grant that was issued by the High Court and which essentially, underpins the titles of the suit properties. 2. To my mind, the titles of the suit properties, cannot be cancelled or nullified, without the revocation of the Certificate of grant. For as long as the grant remains in situ, the subject suit is legally untenable. 3. In the end, I find and hold that this court is divested of the jurisdiction, to entertain and adjudicate upon the suit; and by extension, to grant the reliefs sought. **Final Orders:** 1. Flowing from the analysis, the final orders that commend themselves to the court are: 2. ***The Preliminary Objection dated the 24.07.2026 be and is hereby Allowed.*** 3. ***The plaintiff’s suit vide plaint dated the 15.07.2026 be and is hereby struck out.*** 4. ***Each party shall bear own costs of the suit.*** 5. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 31ST DAY OF JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Ms. Gikundi for the plaintiffs. Mr. Muchiri for the defendants.