https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10090

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **SUCCESSION CAUSE NO. E74 OF 2004** KIYUA KIETI………………………………………..………………….1ST PETITIONER MONTHE KIETI……………………………………….……………….2ND PETITIONER VERSUS KELI KIETI NDOLO…………………………………………………….1ST OBJECTOR JACKSON MUTINDA………………………………………..…………2ND OBJECTOR **RULING** 1. This Court, on the 17th of September 2025, gave directions on the hearing and determination of the Respondent’s preliminary objection, that the same proceeds by way of written submissions. 2. The parties complied and exchanged their respective submissions on the preliminary objection. 3. The petitioner in her Notice of Preliminary Objection dated 19th June 2025, contended that the court is divested of jurisdiction to order a cancellation of title to parcel number KALAMA/KITINI/8. The only Court possessed of jurisdiction to do so is the Environment and Land Court established under section 4 of the Environment and Land Court Act. 4. The Applicants are inviting the Court to revoke a grant of Letters of Administration that does not exist. 5. That the Summons is grossly incompetent in that it is purportedly supported by a fatally defective affidavit. 6. The 1st Objector responded to the preliminary objection dated 19th June 2025 by filing a replying affidavit. 7. The 1st Objector averred that the issue before the court arose from a grant of letters of administration issued on 28th day of September 2012 and that the dispute revolves around the material forgery of one of the beneficiaries' signatures during the process of acquiring the grant, a matter which squarely falls within the jurisdiction of the succession court under section 76 of the Law of Succession. 8. That the Environment and Land Court is mandated to deal with disputes involving land use, title, and occupation, and not the validity of succession proceedings or revocation of a grant. 9. The Succession Court retains exclusive jurisdiction to determine whether the grant was fraudulently obtained or materially defective. 10. That the grant, having been issued by the High Court, any revocation, rectification, or enforcement must be canvassed within the same jurisdiction. 11. The Court indeed issued that valid grant of letters of administration on the 28th day of September 2012 and remains on record. 12. The grant forms the subject of pending criminal proceedings where the administrator has been charged with fraudulently obtaining the same grant. 13. The preliminary objection fails to meet the threshold established in Mukhisa Biscuit Manufacturing Co. Ltd (1969) EA 696, which held that a preliminary objection must raise a pure point of law, uncontested by factual issues. 14. The 1st Objector’s submissions in opposition to the preliminary objection was on similar lines, where he reiterated the court’s jurisdiction under section 45 of the Law of Succession Act, cited the decision of the court in Re Estate of Mwaura Mutugi alias Mwaura Gikonyo Mbura (Deceased) (2018) eKLR where the court held that ‘questions of inclusion or exclusion of beneficiaries and distribution of estate fall within the jurisdiction of the probate court even where land is involved’ 15. And in Re: Estate of G.K.K (Deceased) 2017 eKLR, where it was held that ‘the mere fact that the subject matter of succession disputes includes land does not oust the jurisdiction of the Probate and Administration court’. And in the case of Kenya Council of Employment Migration Agencies vs Nyamira County Government and 10 others (2015) eKLR. For the proposition that preliminary objections are to be restricted to pure questions of law. 16. The application, which is the subject of the preliminary objection, is a summons for revocation of the grant of letters of administration dated 24th March 2025, wherein the applicant sought that the grant of letters of administration issued on 24th April 1991 and confirmed on 28th September 2012 to MONTHE KIETI AND KIYUA KIETI be revoked 17. The land title obtained by the Petitioner to the suit land No. KALAMA/KITINI/8 be canceled, and the property revert to the estate of KIETI NDOLO INYENYE (deceased) for proper administration. 18. That a fresh letter of administration of the estate of KIETI NDOLO INYENYE (DECEASED) be issued to both the objector herein, KELI KIETI NDOLO, or as the Court may direct. 19. Applicant invoked sections 47, 48, and 76 of the Law of Succession Act, rules 44 (1) and 73 of the Probate and Administration Rules. 20. This Court, on 17th September 2025, directed that the Respondent's Preliminary Objection dated 19th June 2025 be canvassed by way of written submissions. 21. The parties filed their respective submissions, which I have carefully considered alongside the pleadings on record. 22. The Preliminary Objection is premised on three grounds, namely: 1. That this Court lacks jurisdiction to order the cancellation of title number KALAMA/KITINI/8, such jurisdiction being vested exclusively in the Environment and Land Court; 2. That the Applicants seek the revocation of a grant of letters of administration that does not exist; and 3. That the Summons for Revocation of Grant is incompetent as it is supported by a fatally defective affidavit. 23. The objection is opposed by the 1st Objector through a response dated 19th June 2025 and written submissions. 24. The law regarding preliminary objections is now settled. In the celebrated case of Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, Law JA stated: *"A preliminary objection is in the nature of what used to be called 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. Similarly, Sir Charles Newbold P observed that a preliminary objection must consist of a pure point of law capable of disposing of the matter without the need for ascertainment of facts. 2. The Court reiterated the same principle in Oraro v Mbaja (2005) 1 KLR 141, where it held that a preliminary objection cannot be founded on disputed facts requiring evidential interrogation. 3. The first issue raised concerns jurisdiction. It is contended that the prayer seeking cancellation of title number KALAMA/KITINI/8 falls within the exclusive jurisdiction of the Environment and Land Court established under Article 162(2)(b) of the Constitution and the Environment and Land Court Act. 4. There is no dispute that questions concerning ownership, occupation, and title to land ordinarily fall within the jurisdiction of the Environment and Land Court. However, the Court must examine the substance of the application before it, rather than isolated prayers. 5. The summons dated 24th March 2025 principally seeks revocation of a grant of letters of administration allegedly obtained through fraud, concealment of material facts, and forgery of a beneficiary's signature. 6. The application is expressly anchored on Sections 47 and 76 of the Law of Succession Act and Rules 44 and 73 of the Probate and Administration Rules. 7. The Law of Succession Act empowers the succession court to revoke or annul a grant where it is shown that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making false statements or by concealment of material facts. 8. The gravamen of the Objector's complaint is therefore not a land dispute *per se* but the propriety and validity of the succession process through which the estate was administered and distributed. 9. In Re Estate of Mwaura Mutugi alias Mwaura Gikonyo Mbura (Deceased) [2018] eKLR, the Court held that issues relating to the identification of beneficiaries and distribution of a deceased person's estate remain within the jurisdiction of the probate court, notwithstanding that land forms part of the estate. 10. Likewise, in Re Estate of G.K.K (Deceased) [2017] eKLR, the Court observed that the mere fact that estate property consists of land does not automatically oust the jurisdiction of the succession court where the dispute concerns the administration of the estate. 11. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others emphasized that jurisdiction flows from the Constitution or legislation. Under Section 47 of the Law of Succession Act, this Court is vested with jurisdiction to entertain all applications and determine all disputes arising under the Act. 12. Where cancellation of a title is sought as a consequential relief flowing from the determination of whether a grant was lawfully obtained or whether estate property was unlawfully transmitted, the succession court cannot be said to be divested of jurisdiction merely because the estate asset is land. In any event, the seeking of any order in relief is not a guarantee that the said order will be granted. 13. I therefore find that the question whether the grant was obtained through fraud, concealment, or forgery falls squarely within the jurisdiction of the Probate court. The issue cannot be determined in isolation from the succession proceedings. 14. The second limb of the objection is that the Applicant seeks revocation of a grant that does not exist. The Objector has exhibited and referred to a grant allegedly issued on 24th April 1991 and confirmed on 28th September 2012. 15. Whether such a grant exists, whether it remains valid, and whether it is the grant targeted by the application are matters requiring examination of the court record and evidence. 16. A court confronted with a preliminary objection must assume the correctness of the facts pleaded by the opposite party. The existence or otherwise of the impugned grant is therefore a factual issue incapable of determination at the preliminary stage. 17. The Court would necessarily be required to interrogate the record and ascertain facts before concluding. Such an exercise falls outside the ambit of a true preliminary objection as defined in Mukhisa Biscuit (supra). 18. The third ground challenges the supporting affidavit as fatally defective. Whether an affidavit is defective and whether such a defect is curable are matters that call for judicial evaluation of the contents and form of the affidavit and the application of the court's discretion under the law. 19. Such questions do not constitute pure points of law capable of disposing of the proceedings without factual inquiry. 20. Having considered the grounds raised, I am not persuaded that the Preliminary Objection satisfies the threshold set out in Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra). 21. The objection is intertwined with contested facts relating to the existence of the grant, the circumstances under which it was obtained, and the consequences flowing therefrom. Such matters can only be resolved upon a substantive hearing of the summons for revocation. 22. Accordingly, I find and hold that the Preliminary Objection dated 19th June 2025 is devoid of merit. In the circumstances of the case, I order as follows. 1. The Preliminary Objection dated 19th June 2025 is hereby dismissed. 2. Costs of the Preliminary Objection shall abide by the outcome of the main application. Delivered, dated, and signed at Mombasa this 16th day of June 2026. **Emmanuel Bitta** **Judge of the High Court** In the presence of; C/A. Nechesah Mwangi h/b for Ngolya for the Petitioner Robert Ondu h/b for Atancha for the Objectors