https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8043

Ondiek v Ondiek & another (Succession Cause 76 of 2013) [2026] KEHC 8043 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 8043 (KLR) Republic of Kenya In the High Court at Homa Bay Succession Cause 76 of 2013 OA Sewe, J May 29, 2026 Between John Paul Ondiek Applicant and Willis Ouma Ondiek 1st Respondent Concellia Aoko Omuga 2nd Respondent Ruling 1.This ruling is in respect of the Notice of Preliminary Objection dated 2nd May 2025. It was filed in response to the application dated 16th April 2025 by which the applicant sought for orders, inter alia, that the 2nd respondent be committed to civil jail for such a period as the Court may deem fit, or be heftily fined for disobeying the orders issued on 3rd March 2014. The 2nd respondent, contended, vide her Notice of Preliminary Objection, that:(a)Land Parcel No. North Ugenya/Sifuyo/636 which forms the basis of this suit is located in Siaya County and therefore it would have been proper if this suit was filed either in the High Court at Siaya or at the Magistrate’s Court in Ukwala.(b)The suit property is the subject of an ongoing suit, being Ukwala MCELC/024/2025: John Paul Ondiek v Concellia Aoko Omuga & Registrar of Lands, Ugenya, filed at Ukwala Law Courts on 27th March 2025.(c)The estate of the late Archbishop Stephen Ondiek has an active ongoing case, namely, Nairobi High Court Succession Cause No. 44 of 2012. 2.Accordingly, the 2nd respondent prayed that the application dated 16th April 2025 be struck out with costs. 3.The Preliminary Objection was canvassed by way of written submissions, pursuant to the directions given herein on 7th March 2025. The respondent filed her written submissions dated 19th May 2025. She reiterated the grounds set out in her Notice of Preliminary Objection and submitted that, according to the copies of searches and green card annexed to the applicant’s list of documents, the suit property, Land Parcel No. North Ugenya/Sifuyo/636 and the sub-titles North Ugenya/Sifuyo/1314, 1315, 1316, 1317 and 1318 are located in Siaya County within the jurisdiction of either Siaya High Court or Ukwala Magistrate’s Court; and not Homa Bay High Court. 4.The respondent further submitted that the suit property is the subject of an ongoing suit before Ukwala Magistrate’s Court, being Ukwala MCELC/E024/2025 filed on the 27th March 2025. She further submitted that the applicant has no locus standi to institute this suit because he is not the administrator of the estate of Archbishop Stephen Ondiek, the deceased. 5.In her further submissions dated 23rd June 2025 the 2nd respondent submitted that Grant of Letters of Administration Intestate was given in Succession Cause No. 247 of 2012 to Evans Owino Ondiek (Son), Willis Ouma Ondiek (Son) and herself, Dr. Concellia A. Ondiek alias Concellia Aoko Omuga (Widow). She added that, as a law abiding citizen, she has never violated any court orders as alleged by the applicant. She therefore urged the Court to uphold her Preliminary Objection and strike out the suit with costs. 6.On his part, the applicant relied on his written submissions dated 5th May 2025. He proposed the following issues for determination:(a)Whether this court has jurisdiction to hear and determine the application dated 16th April 2025.(b)Whether the application dated 16th April 2025 offends the doctrine of sub judice.(c)Whether the applicant has Locus standi to institute and maintain this suit. 7.In the applicant’s submission, this Court is indubitably clothed with the requisite jurisdiction to entertain and determine the application dated 16th April 2025. He pointed out that the said application seeks to have the 2nd respondent cited for contempt of court for willfully disobeying orders issued by this Court on 3rd March 2014; and therefore, since contempt is, by its nature, an affront to the authority of the issuing court, it follows as a matter of both law and logic that the contempt proceedings be brought before the same court whose dignity and authority have been allegedly impugned. Thus, the applicant submitted that, to suggest, as the 2nd respondent did, that the matter ought to be ventilated before Ukwala Law Courts, a forum entirely unconnected to the orders in question, is not only procedurally misguided but legally untenable. 8.On whether the application dated 16th April 2025 offends the doctrine of sub judice, the applicant relied on Malika & another v Bidii International Company Ltd & Another [2023] KEHC 26161 (KLR) and Patel & Patel Ltd & Another v Commissioner of Customs and Excise & 6 Others [2014] eKLR and reiterated that his application is a contempt application, a sui generis proceeding aimed at sanctioning the 2nd respondent for disobedience of orders issued herein on 3rd March 2024. He added that Ukwala MELC No. E024 of 2025 concerns an entirely different subject, namely, cancellation of titles. The applicant further submitted that sub judice arises only where the same issue, involving the same parties, is pending before a court of competent jurisdiction; and therefore the doctrine of sub judice had been misapplied in this instance. 9.On whether he has locus standi to maintain this suit, the applicant conceded, on the authority of Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] KEHC 4186 (KLR), that the issue of locus standi is cardinal and that lack of locus standi renders the proceedings null and void. However, he submitted that he was one of the original applicants in the Summons for Revocation that culminated in the orders issued by this Court on 3rd March 2014; the very orders the 2nd respondent is now accused of disobeying. 10.In the applicant’s submission, the mere existence of a succession cause does not confer upon the 2nd respondent the unfettered liberty to flout subsisting court orders. That succession cause neither vests her with immunity from compliance. Accordingly, the applicant asserted that he possesses the requisite locus standi, rooted both in history and legal right, to bring and maintain the contempt application. 11.In conclusion, the applicant urged the Court to find that the 2nd respondent’s Preliminary Objection raises no pure point of law capable of disposing of the matter. He prayed that the same be dismissed with costs. 12.What amounts to a preliminary objection was aptly captured in Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors [1969] EA 696 thus:“…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 of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission 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 the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion…” 13.Similarly, in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR the Supreme Court emphasized the point that: -“...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…” 14.The 2nd respondent relied on several documents in proof of her assertion that the suit property is situated in the County of Siaya; that the applicant is not one of the administrators of the estate of the deceased, Archbishop Stephen Ondiek, and that there is another suit relating to the suit property pending before the Magistrate’s Court at Ukwala. Ordinarily, any preliminary point that entails factual details cannot be a valid preliminary objection. In Oraro v Mbaja [2005] 1 KLR 141, Hon. Ojwang, J. (as he then was) held that:“...A "preliminary objection" correctly understood, is now well defined as, and declared to be, a 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, 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...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..." 15.In the instant matter, it is manifest that the facts relied on by the 2nd respondent are not in dispute. Consequently, the issues for determination are:(a)Whether the Court has jurisdiction to entertain this suit in which the subject matter is a piece of land situated in the County of Siaya;(b)Whether the applicant has locus standi to maintain this suit. A. On Jurisdiction: 16.It is now trite law that jurisdiction is everything and that if it is lacking then the court must down its tools. In The Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited [1989] KLR 1 the Court held:“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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 17.Moreover, in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court pointed out that:“(68)A Court’s jurisdiction flows from either the constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the 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 of 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 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. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the constitution. Where the constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law…” 18.The jurisdiction of the High Court is provided for in Article 165(3) of the constitution thus:(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation. 19.Further to the foregoing, Section 47 of the Law of Succession Act is explicit that:“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.” 20.A perusal of the court record reveals that this is a suit that was filed in 2013 by the applicant and 12 others against the two respondents for revocation of grant issued to the two respondents in respect of the estate of Archbishop Stephen Alloyse Ondiek (deceased). The grant had been issued by the Principal Magistrate’s Court at Rongo. The law at the time provided that revocation of grant issued by subordinate courts be filed before the High Court. Hence, Section 48(1) of the Law of Succession Act, provided that:“Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 of this Act, a Resident Magistrate shall have jurisdiction to entertain any application other than an application under section 76 of this Act and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings:Provided that for the purpose of this section in any place where both the High Court and a Resident Magistrate’s Court are available, the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under this Act.’ (emphasis added). 21.The above provision was amended in 2015 by the Magistrates’ Court Act, Act No. 26 of 2015. Section 23 of the Act amended Section 48(1) of the Law of Succession Act to read as hereunder:“Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7 (1) of the Magistrates’ Courts Act, 2015.’ (emphasis added). 22.That explains why this application for revocation of grant was filed before the High Court at Homa Bay. There is no doubt therefore that the Court has jurisdiction to entertain the matter in so far as the grant was issued by a subordinate court falling under the jurisdiction of the High Court as Homa Bay. It is noteworthy too that the Rongo suit was filed by none other than the respondents while knowing fully well that some of the fixed assets listed in their Affidavit in Support of the Petition for Grant of Letters of Administration Intestate in respect of the estate of Archbishop Stephen Ondiek (deceased) were situated elsewhere. It is therefore mischievous for the 2nd respondent to invoke territorial jurisdiction in her aid at this stage of the proceedings. B. On Locus Standi: 23.In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR the Supreme Court pointed out that:“...The issue of locus standi raises a point of law that touches on the jurisdiction of the Court, and it should be resolved at the earliest opportunity. In Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, Sup. Ct. Petition No. 7 of 2013; [2014] eKLR, this Court held (at paragraphs 68 and 69) that the question of jurisdiction is a “pure question of law,” and should be resolved on a priority basis…” 24.The 2nd respondent contended that since the applicant is not one of the administrators of the deceased, he had no legal standing to file the instant application for contempt of court. A perusal of the court filed however confirms the averment by the applicant that he is one of the 13 applicants who filed this matter seeking revocation of the grant issued to the respondents in Rongo Principal Magistrate’s Court. Indeed, the court record shows that the grant issued to the respondents was revoked at the instance of the applicants. Clearly, the applicant has the necessary locus standi in this matter. 25.In the light of the foregoing, I find no merit in the 2nd respondent’s Preliminary Objection dated 2nd May 2025. The same is hereby dismissed with an order that the costs thereof be borne by the 2nd respondent.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF MAY 2026……………………………HON. OLGA SEWEJUDGE