https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4544

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCC NO. E155 OF 2022** **JUDY NJERI MUTUGI (Suing as Administrator of the Estate of Ben Kinyanjui Muya (Deceased)………………………………………………………PLAINTIFF** **VERSUS** **SARAH WANJIRU GACHANGI……………………......……..1ST DEFENDANT** **PETER NJOROGE GITAU…………………………………….2ND DEFENDANT** **JANE WANJA GITAU……………………………….…………3RD DEFENDANT** **MARGARET NJERI GITAU…………………………..………..4TH DEFENDANT** **RACHEL MWIHAKI NJENGA…………………………..…….5TH DEFENDANT** **JOHN NGANGA GITAU……………………………...………6TH DEFENDANT** **RULING** 1. The matter before this Court is a Notice of Preliminary Objection dated 2/10/2025, brought by the Defendants seeking to strike out the Plaintiff's suit *in limine* on the grounds *inter alia*: 2. **That the suit is hopelessly misconceived and totally devoid of merit.** 3. **That the suit is frivolous.** 4. **That the suit is a total abuse of the process of Court.** 5. **That the Plaintiff lacks *Locus Standi* to file this suit.** 6. **That the estate of BEN KINYANJUI MUYA (Deceased) does not have any cause of action as against the Defendants.** 7. **That this Honourable Court lacks Jurisdiction to entertain the suit.** 8. **That the title deed in question being L.R NO. DAGORETTI/UTHIRU/T.293 is not registered in the name of BEN KINYANJUI MUYA (Deceased), and does not form part of his estate.** 9. **That the title deed which is the subject matter of the suit being L.R NO. DAGORETTI/UTHIRU/T.293 was never registered in the name of BEN KINYANJUI MUYA (Deceased) on behalf of whose estate this suit has been filed, during his lifetime.** 10. **That this Honourable Court lacks the jurisdiction to entertain the suit as drawn and filed.** 11. **That in light of the foregoing, the suit ought to be struck out with costs.** 12. The Objection is grounded upon the various pleadings herein, the Court record and on such other or further grounds as may be adduced at the hearing hereof. 13. The Objection is opposed. The Plaintiff/Respondent filed written submission dated 21/04/2026 opposing the Notice of Preliminary Objection. 14. According to the Plaintiff/Respondent, he submitted and defended the suit's viability by asserting that the Plaintiff possesses the requisite legal standing and that the Court is properly seized of jurisdiction. At the heart of the Respondent’s argument is the contention that the objection, which seeks to strike out the suit for lack of *locus standi*, is legally untenable and fails to meet the threshold of a pure point of law. The Plaintiff emphasizes that she has sufficiently demonstrated her capacity to represent the estate of the late Ben Kinyanjui Muya by producing a Judgment from **Milimani Succession Cause No. 627 of 2006** and a Grant of Letters of Administration issued on 4/04/2017. These documents, the Plaintiff argues, vest her with the clear legal authority to institute and maintain these proceedings on behalf of the deceased’s estate, thereby satisfying the requirements of legal capacity as contemplated in the case of **Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (2016) eKLR.** 15. Furthermore, the Respondent argues that the estate maintains a direct and legitimate cause of action concerning the suit property, L.R. No. Dagoretti/Uthiru/T.293. To substantiate this, the Plaintiff points to a comprehensive trail of documentation including the Transfer of Land, Land Control Board consents, and stamp duty receipts, all of which indicate that the property was lawfully transferred to the deceased during his lifetime. The Plaintiff posits that the Defendants’ objection improperly invites the Court to delve into a factual interrogation of evidence, which contradicts the established principles in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd,** **(1969) EA 696** where a Preliminary Objection must be founded on a pure point of law rather than contested facts. 16. In addressing the Court’s authority, the Respondent asserts that the Court is well-vested with jurisdiction under Sections 26 and 80 of the Land Registration Act to scrutinize titles and order rectifications where fraud, illegality, or procedural impropriety is alleged. The Plaintiff also highlights the inherent contradiction in the Defendants’ position, noting that they challenge the Court’s jurisdiction while simultaneously maintaining a Counter-Claim within the same forum. Consequently, the Respondent maintains that the suit is properly before the Court and prays for the dismissal of the Preliminary Objection with costs, asserting that the estate’s interest is protected by law and ripe for determination on its merits. 17. In response, the Defendants’ submissions in support of their Preliminary Objection proceed on the fundamental premise that the suit is fatally incompetent and a manifest abuse of the Court process. The Applicants contend that while the suit is purportedly instituted by the Estate of Ben Kinyanjui Muya (Deceased), the legal representative, Judy Njeri Mugi, has erroneously conducted herself as the principal Plaintiff, which they argue is a grave legal misconception. 18. Central to the Defendants' argument is the assertion that they are the lawfully registered proprietors of the suit land, **L.R. No. Dagoretti/Uthiru/T.293**, having acquired the same through transmission pursuant to a Grant and a Certificate of Confirmation of Grant. They posit that since these documents are valid Court orders, any transmission of title flowing therefrom is legally sanctified and cannot be characterized as fraudulent. In support of this position, the Defendants rely on the persuasive authority of **Nairobi High Court Succession Cause No. 1010 of 2011: In the Matter of the Estate of Geoffrey Kinuthia Nymwiga (Deceased)**, where the Court held that a Grant and a Certificate of Confirmation of Grant constitute formal orders of the Court. 19. Building on this foundation, the Applicants submit that the Plaintiff’s estate lacks a discernible cause of action known to law against them, thereby rendering the entire suit a nullity *ab initio*. It is the Defendants’ position that because no valid cause of action exists, this Honourable Court is left with no substratum to determine and consequently lacks the requisite jurisdiction to entertain the matter as drawn and filed. They further characterize the suit as being hopelessly misconceived, frivolous, and devoid of any merit. In light of these perceived jurisdictional and procedural infirmities, the Defendants pray that the suit be struck out with costs and that the Court proceeds to enter judgment in favor of their Counter-Claim, asserting that the sanctity of Court orders must be upheld over the Plaintiff’s unsustainable claims. Analysis and Determination 1. The Defendants’ case is anchored on the assertion that the Plaintiff, as the representative of the Estate of Ben Kinyanjui Muya (Deceased), lacks *locus standi* and that the suit disclose no cause of action. They argue that their title to L.R. No. Dagoretti/Uthiru/T.293 is rooted in a Grant and Certificate of Confirmation of Grant valid Court orders that they claim cannot be impugned as fraudulent. Conversely, the Plaintiff/Respondent asserts that she has established her legal capacity via a Grant of Letters of Administration and that the deceased acquired an interest in the property during his lifetime through a lawful transfer process. 2. From my analysis of the pleadings and the responses filed and written submissions I am convinced that the following three issues are critical in determining the application at hand: 3. *Whether the Preliminary Objection meets the threshold of a pure point of law.* 4. *Whether the Plaintiff possesses the requisite locus standi to maintain the suit.* 5. *Whether the suit discloses a cause of action and whether this Court has jurisdiction.* 6. The locus classicus on Preliminary Objections in East Africa is **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**. In that case, **Law, P.** defined a Preliminary Objection as follows: ***"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."*** 1. Furthermore, Sir Charles Newbold, P. added: ***"A proper Preliminary Objection of the kind I have in mind is one which, if allowed, would have the effect of disposing of the suit. Such an objection must be based on a pure point of law... it is not a Preliminary Objection if to decide it you have to delve into the facts of the case."*** **Analysis of Pleadings and Issues for Determination** 1. The matter before this Court is a **Notice of Preliminary Objection** dated 2nd October 2025, brought by the Defendants seeking to strike out the Plaintiff's suit *in limine*. 2. The Defendants’ case is anchored on the assertion that the Plaintiff, as the representative of the **Estate of Ben Kinyanjui Muya (Deceased)**, lacks *locus standi* and that the suit disclose no cause of action. They argue that their title to **L.R. No. Dagoretti/Uthiru/T.293** is rooted in a Grant and Certificate of Confirmation of Grant—valid Court orders that they claim cannot be impugned as fraudulent. Conversely, the Plaintiff/Respondent asserts that she has established her legal capacity via a Grant of Letters of Administration and that the deceased acquired an interest in the property during his lifetime through a lawful transfer process. 3. The **key issues for determination** are: 4. Whether the Preliminary Objection meets the threshold of a pure point of law. 5. Whether the Plaintiff possesses the requisite *locus standi* to maintain the suit. 6. Whether the suit discloses a cause of action and whether this Court has jurisdiction. **Judicial Precedents and Legal Principles** 1. The locus classicus on Preliminary Objections in East Africa is **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**. In that case, **Law, P.** defined a Preliminary Objection as follows: ***"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."*** 1. Furthermore, **Sir Charles Newbold, P.** added: ***"A proper Preliminary Objection of the kind I have in mind is one which, if allowed, would have the effect of disposing of the suit. Such an objection must be based on a pure point of law... it is not a Preliminary Objection if to decide it you have to delve into the facts of the case."*** 1. On the issue of *locus standi* and capacity to sue for a deceased's estate, the Court in **Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva [2016] eKLR** stated: ***"Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a Court acting without jurisdiction since it all amounts to null and void proceedings."*** 1. Regarding the Defendants' reliance on the sanctity of a Grant, the Court in **In Re Estate of John Ngacha Ng'ang'a (Deceased) [2023] KEHC 19462 (Succession Cause 1307 of 2011)** affirmed that a Grant and its Confirmation are indeed formal orders of the Court. However, this must be balanced against **Section 26 of the Land Registration Act**, which allows for the impeachment of title obtained through fraud or procedural impropriety. 2. Authoritative authors such as **Mulk Raj Behal** in the **Law of Pleadings in India and East Africa** suggest that a Preliminary Objection must be a self-contained legal point. If a Court is required to go through bundles of documents to ascertain the veracity of a title as is the case here where the Plaintiff presents Land Control Board consents and transfer forms the matter ceases to be a pure point of law and becomes a matter of evidence. 3. For a Preliminary Objection to succeed, it must be so clear that the Court needs no evidence to see that the suit is dead on arrival. In this matter, the Defendants argue that the suit land was never registered in the deceased's name and therefore cannot form part of his estate. The Plaintiff counters this with documents of transfer and a Grant of Representation. 4. This Court finds that the Defendants' objection regarding the ownership of **L.R. No. Dagoretti/Uthiru/T.293** is not a pure point of law. It is a question of fact. To determine whether the property belonged to the deceased or was lawfully transmitted to the Defendants, the Court must interrogate the evidence, the Land Office records, and the circumstances of the transmission. This delving into facts is exactly what the **Mukisa Biscuit** **case** prohibits at this stage. 5. On *locus standi*, the Plaintiff has produced a Grant of Letters of Administration. Under Kenyan law, a Grant is the authority or in simple language the passport to represent an estate. Whether that estate actually owns the suit land is a matter for trial, not a Preliminary Objection. 6. It is also curious, and perhaps legally contradictory, for the Defendants to challenge the Court's jurisdiction while simultaneously inviting the Court to grant them judgment on their Counter-Claim. Jurisdiction cannot be a one-way street; it either exists for the whole dispute or it does not. 7. This Court has carefully considered the Notice of Preliminary Objection dated 2/10/2025 and the rival submissions. The Objection fails because, it is not based on a pure point of law but rather on contested facts regarding the ownership and registration of the suit property. At the same time the Plaintiff has demonstrated *prima facie* *locus standi* by virtue of the Grant of Letters of Administration issued on 4th April 2017. And the issues of fraud and validity of the Defendants' title require a full trial where evidence can be tested by cross-examination. 8. Given the foregoing the Preliminary Objection is hereby dismissed in its entirety. The suit shall proceed to hearing on its merits. Costs shall be in the cause. **Orders Accordingly.** **DATED, SIGNED and DELIVERED AT THIKA VIA MICROSOFT TEAMS THIS 15TH DAY OF JULY 2026.** …………………….. **MOGENI J** **JUDGE** **In the presence of:** Mr. Maina holding brief for Mr. Oketch for the Plaintiff/Respondent Mr. Njogu for the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants Mr. Melita - Court Assistant ……………………. **MOGENI J** **JUDGE**