Muteti & 4 others v Muoki & 13 others (Environment and Land Case 488 of 2015) [2026] KEMC 115 (KLR) (26 May 2026) (Ruling)

Muteti & 4 others v Muoki & 13 others (Environment and Land Case 488 of 2015) [2026] KEMC 115 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEMC 115 (KLR) Republic of Kenya In the Makindu Law Courts Environment and Land Case 488 of 2015 YA Shikanda, SPM May 26, 2026 Between Mbulwa Muteti 1st Plaintiff Mutuku Muteti 2nd Plaintiff Mutisya Muteti 3rd Plaintiff Muema Muteti 4th Plaintiff Mwanzia Muteti 5th Plaintiff and Christine Muoki 1st Defendant Elizabeth Muoki 2nd Defendant Christopher Muoki 3rd Defendant John Muoki 4th Defendant Magdaline Muoki 5th Defendant Boniface Muoki 6th Defendant Kaviti Muoki 7th Defendant Samuel Muoki 8th Defendant Ndolo Muoki 9th Defendant Augustino Muoki 10th Defendant Paul Muoki 11th Defendant Mwanzia Muoki 12th Defendant Kimeu Muoki 13th Defendant Benedetta Muoki 14th Defendant Ruling The Preliminary Objection 1.This is a determination on a preliminary objection raised by the defendants herein. There was no separate notice of the preliminary objection but the objection was raised in the amended statement of defence and counter-claim. The objection was raised in paragraph 6 of the defence to the amended plaint in the following words:“The defendant therefore aver that this honourable court is not clothed with jurisdiction to hear or determine the suit herein, and shall raise preliminary objection on points of law before the suit herein proceeds for hearing in limine.” 2.When the matter came up for hearing on 27/3/2026, Counsel for the defence raised several issues and later raised a preliminary objection indicating that this court lacks jurisdiction to hear and determine the suit. This ruling will only address the preliminary objection on the issue of jurisdiction. The other issues shall be addressed separately, depending on the outcome of the ruling on the issue of jurisdiction. Mr. Kivindyo, learned counsel for the defence submitted that the issues raised herein touch on Probate and Administration. That the issue of gift inter vivos falls within the mandate of the Probate and Administration court. Counsel argued that the competing rights of the parties and proof of gifts inter vivos can only be determined in a succession cause. Counsel urged the court to look at the pleadings and determine whether it had jurisdiction to hear and determine the matter. Submissions On Behalf Of The Plaintiffs 3.Mr. Kalwa, learned counsel for the plaintiffs opposed the objection. Counsel submitted that there was a difference between gifts inter vivos and gifts mortis causa. That gifts inter vivos are given during the lifetime of the deceased and do not form part of the estate of the deceased whereas gifts mortis causa are given in contemplation of death and form part of the estate of the deceased. Mr. Kalwa argued that the subject matter of the suit was completely gifted by the deceased owner during her lifetime. That the court has jurisdiction to entertain the matter as the suit has nothing to do with succession. Rejoinder By The Defence 4.In rejoinder, Mr. Kivindyo argued that the issue of existence of a gift whether inter vivos or otherwise ought to be litigated in a probate and administration court. That it cannot be litigated separately. The defence further argued that parties ought to have approached the Probate and Administration court first so as to determine the issue of existence or otherwise of the gift inter vivos. Main Issue For Determination 5.In my opinion, the main issue for determination is whether this court has jurisdiction to entertain the plaintiff's claim. Analysis And Determination 6.I have carefully considered the preliminary objection and given due regard to the submissions made by the parties. The question of what constitutes a preliminary objection was well answered in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v Westend Distributors Ltd [1969] EA 696 where at page 700 D – E Law JA stated: -“So far as I am aware, Preliminary objection consists of a pure point of Law which has been pleaded, or which arises by clear implication out of the 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.”At page 701 Sir Charles Newbold, P. said: -“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”. 7.It is trite law that a preliminary objection can be raised at any time when the proceedings are still active. The case of Ng’ang’a Kahuha v Munyi Kahuha [2008] eKLR is germane on this point. In the said case, the court held as follows:“Did the defendant/applicant raise the issue of jurisdiction too late? I also answer this question in the negative. Jurisdiction is everything and if it turns out to be an issue in court proceedings, it has to be addressed regardless of the stage of the proceedings. Nevertheless, jurisdiction ought to be raised at the earliest possible opportunity..........In the present case, the issue of jurisdiction has been pursued belatedly but I must consider it all the same. Note should be taken that even the court can raise the issue of jurisdiction suo motu". 8.The main suit herein is yet to be heard, so no concrete evidence on the substantive issues in contention has been tendered before court. The nature of the objection is on jurisdiction and therefore, it fits the description of a preliminary objection. I will proceed to determine it. 9.In the writings of John Beecroft Saunders in a treatise entitled "Words and Phrases Legally defined" – Volume 3: I – N at page 113, quoted in the case of Seven Seas Technologies Limited v Eric Chege [2014] eKLR, the following was said about jurisdiction:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given". 10.In the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, Justice Nyarangi (as he then was) of the Court of Appeal held as follows:“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. 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". 11.In Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others [2012] eKLR, the Supreme Court of Kenya pronounced itself on jurisdiction and stated:“A Court’s jurisdiction flows from eitherthe Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred bythe Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 12.The Constitutional and statutory foundation for the jurisdiction of the Magistrates courts is Articles 23 (2) and 169(1) (a) ofthe Constitution as read with the Magistrates Court Act No. 26 of 2015. Section 4(1) of the Magistrates Court Act stipulates as follows:“The objective of this Act is to enable magistrate courts to facilitate just, expeditious, proportionate and accessible judicial services in exercise of the criminal and civil jurisdiction in this Act or any other written law." 13.From the above provision, it can be inferred that in order to ascertain whether a Magistrate's court has jurisdiction to try a matter before it, the court does not have to restrict itself to the provisions of the Magistrates Court Act. Jurisdiction may be conferred or ousted by other written law. 14.According to section 5 of the Civil Procedure Act, any court shall, subject to the provisions contained in the Act, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. 15.Section 26 of the Environment and Land Court Act provides in part as follows:“(3)The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country.(4)Subject to Article 169(2) ofthe Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle —(a)disputes relating to offences defined in any Act of Parliament dealing with environment and land; and(b)matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act.” 16.Section 9 of the Magistrates’ Court Act further provides in part that:“A magistrate's court shall—a.in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 8D) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to—i.environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;ii.compulsory acquisition of land;iii.land administration and management;iv.public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; andv.environment and land generally.” 17.The foregoing reveals that this court has jurisdiction to hear and determine land disputes subject to limitations provided by law. The question that this court needs to answer is whether this suit is a land dispute or succession dispute. I have looked at the amended plaint. The plaintiffs averred in paragraph 3A that they were beneficiaries of a gift inter vivos from their late mother. The gift is a parcel of land. Paragraph 5a of the amended plaint indicates that the gift was completed. The plaintiffs allege that the defendants trespassed on their land and seek the court’s declaration that the gift inter vivos was complete and that the court should declare them to be the owners of the land. The plaintiffs alternatively urge the court to declare a continuing customary trust over the suit property. 18.In the defence to the amended plaint, the defendants alleged that the suit land belonged to the estate of Kamene Muema and no grant of representation of the estate of the deceased had been issued. That the plaintiffs were litigating succession issues in the land and environment court. In paragraphs 15, 16 and 17 of the defence to the amended plaint, the defendants averred that 20 acres out of the 31 belonged to the late Muoki Muema and that succession proceedings were conducted where after the land was transmitted to the rightful beneficiaries of the estate. The defendants argue that 20 acres out of the suit land does not form part of the estate of the late Kamene Muema. 19.The suit raises complex issues which cannot be determined at a preliminary stage without taking evidence. From the pleadings, the issue of locus standi also arises. The issue of ownership of the suit land has to be determined before the court considers whether or not it forms part of the estate of which deceased. A succession court cannot determine issues of ownership of land. Once ownership is determined, the court may then delve into the issue of gift inter vivos. I agree that the issue of a gift inter vivos can properly arise and be litigated in a succession cause, particularly where there is a dispute as to whether certain property forms part of the deceased’s estate. In succession proceedings, the court may be called upon to determine:a.whether the deceased validly gifted property during his lifetime;b.whether the gift was completed before death;c.whether the deceased retained ownership or control;d.and consequently, whether the property should be included in the estate available for distribution. 24.However, if determining the alleged gift requires the court to conclusively decide complex questions of ownership, trust, fraud, contractual validity, or title involving third parties, the succession court may not have jurisdiction. The position of the plaintiffs is that the gift was complete and thus not a subject of probate and administration. In my view, the court must hear the evidence and determine whether the gift existed as alleged and whether it was complete. Other issues of customary trust have also been raised. Issues of ownership and customary trust cannot be determined by a succession court. Once the court has heard the parties, it will be in a position to determine whether the dispute is one for succession or ownership of land. It will be premature to make that decision at this stage. 25.Kenyan courts have repeatedly stated that a probate court’s primary role is administration and distribution of estates, not the determination of intricate ownership disputes between the estate and third parties. The issues raised by the defendants cannot be determined as pure points of law. They are based on facts which must be proved or disproved. Evidence must be tendered for the court to make a determination. Disposition 26.The upshot of the above considerations is that the preliminary objection is devoid of merit. I proceed to dismiss the same, with no orders as to costs. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 26TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.