https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3213

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLC E024 OF 2024** **NANCY WAITHIRA NJOROGE(Suing in her capacity as the Administratix of** **the estate of Samuel Mwangi Kabugi) …………………………………………….PLAINTIFF** **VERSUS** **DANIEL KIARII MWANGI…………………..……….................................1ST DEFENDANT** **WILLIAM KIMEMIA MWANGI…………………...…………………….2ND DEFENDANT** **LAND REGISTRAR MURANG’A ………………………………….....….3RD DEFENDANT** **LETSHEGO KENYA LIMITED…………………..…………………...….4TH DEFENDANT** **RULING** 1. The ruling is on the two(2) preliminary objections on record. The first one is by the 1st and 2nd Defendants. It reads. 2. **That this Court lacks jurisdiction to entertain Probate and Administration matters and the same should be dealt with in the Succession Cause and the whole gist of the matter is strictly within the purview of the succession cause.** 3. **That these proceedings are sub judice the proceedings in Milimani Succession Cause 607 of 2013, Estate of Samuel Mwangi Kabugi alias Mwangi Kabugi(deceased) where a similar application has been filed, dated 9-7-2024.** 4. The second preliminary objection is by the 4th Defendant and it is dated 29-8-2024. It is based on four grounds. 5. **This Court lacks the requisite jurisdiction to entertain this matter which is filed contrary to the provisions of Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Court Act,(Act No 19 of 2011) as the issue in dispute herein is predominantly a succession issue.** 6. **This Court also lacks jurisdiction to handle matters that involve the enforcement of financial securities.** 7. **The Plaintiff does not have locus to challenge the 4th Defendant’s exercise of its statutory power of sale as provided for under Section 96 of the Land Act (Act No 6 of 2012).** 8. **By reason of the aforesaid provisions of law, the application, the suit and the entire proceedings are misconceived, incompetent and a complete nullity and should therefore be struck out with costs to the 4th Defendant.** 9. The brief facts of the case according to the Plaintiff are as follows. She is the administratix of the estate of the late Samuel Mwangi Kabugi. The 1st and 2nd Defendants are the sons of the late Samuel who died on 8-6-2020. Recently the Plaintiff discovered that on 8-6-2020, the 1st Defendant was registered as the owner of L.R. No. Loc.16/Mbugiti/1071 and 1072 without any confirmed grant yet the property had been registered in the name of the deceased. The 2nd Defendant was equally registered as the owner of L.R. No. Loc.16/Mbugiti/1070 without due process and this registration was on 11-8-2021. This suit challenges these registrations on the ground that they are fraudulent. The 1st Defendant has charged the suit parcel with the 4th Defendant and after obtaining the loan, he has not serviced it and the land is in danger of being auctioned to recover the loan arrears. 10. The facts of the case according to the 1st and 2nd Defendants are that their late father had distributed his estate amongst all his dependants, before he died. He had even drawn maps for each parcel and each of his sons occupied their respective parcels in their father’s lifetime. The deceased’s daughters were given property in Mombasa. The Plaintiff was also given property in Mombasa which is plot No. 855V Mikindani. All the property, the subject matter of this case was transferred lawfully. The Plaintiff has not been co-operative when it comes to the distribution of the deceased’s property which was subject to succession. As a result there is a succession cause proceeding at Milimani High Court involving the estate of the deceased. 11. In the case of the 3rd Defendant, its case is that it was not involved in any fraud and all the requisite instruments were presented to the Land Registrar for transfer of the suit parcels and the registrar was not aware that the transferor of the land was deceased. 12. Finally for the 4th Defendant, the facts are that the 1st Defendant charged L.R. No. 1071 and 1072 with the 4th Defendant. This was in September, 2020. At the time, the said land was registered in the name of the 1st Defendant. The 1st Defendant defaulted in the agreed loan repayment. The suit land is the property of the 1st Defendant and there is no evidence that it belonged to the Plaintiff even at the time that it was charged to the 4th Defendant. 13. Counsel for the 1st, 2nd and 4th Defendants filed written submissions dated 27-11-2025, 6-9-2024 and 16-3-2026. The following issues were identified as falling for determination. 14. **Whether this Court has jurisdiction to hear and determine the present suit.** 15. **Whether this suit is Sub judice Succession Cause No. 607 of 2013 within the meaning of Section 6 of the Civil Procedure Act.** 16. **Whether the dispute herein concerns purely financial securities and commercial obligations outside the jurisdiction of this Court.** 17. **Whether the Plaintiff has the requisite locus to institute and maintain this suit.** 18. **Whether the 4th Defendant’s preliminary objection raises pure points of law.** 19. **Whether the Plaintiff has *locus standi* to challenge the 4th Defendant’s exercise of its statutory power of sale.** 20. **Who is entitled to costs.** 21. I have carefully considered the preliminary objections, the case for each party, the record, the written submissions, the law cited therein and the issues raised by each party. I find as follows on the issues. 22. The Court has jurisdiction to issue all the orders sought in the plaint dated 6-8-2024. The only problem with the plaint is that at paragraph 13 it states that there is no other pending suit and no previous suit in any Court between the Plaintiff and the Defendants in this matter. Further to this, there is a verifying affidavit sworn by the Plaintiff which states at paragraph 3 that the facts in the plaint are correct. It repeats at paragraph 4 about there being no pending or previous suit. We know for a fact that all the above is not true because on 9-7-2024, less than a month before, the Plaintiff had sworn an affidavit in Milimani Succession Cause No. 607/2013 in support a summons dated 9-7-2024. In that case she and Beth Wambui Kamindo are the Applicants while the Defendants in this case are the Respondents. This suit is undoubtedly based on a false affidavit. 23. Regarding the second issue, I find that this suit is *res judicata* because of Succession Cause No. 607 of 2013. In that cause, the same parties as in this case, are litigating over the subject matter of this suit as well as other property of the deceased. **Order 4 rule 1 (1) (f)** was introduced into the **Civil Procedure Rules** to cure the mischief that the Plaintiff is perpetrating in this case of filing two parallel proceedings in respect to one subject matter. 1. I find, in regard to the third issue that this suit does not concern financial securities and commercial obligations. It is concerned with alleged fraudulent acquisition of three(3) parcels of land. The 4th Defendant did not in their trial bundle file a counterclaim raising the issue of charges. Even if they had, if the suit property were to be found to be unlawfully acquired by the 1st Defendant, the 4th Defendant would not be protected in view of **Article 40(6)** of the Constitution that does not apply to unlawfully obtained property. 2. As for the 4th issue, I find that the Plaintiff has the requisite locus to institute and maintain a suit such as this. Being a beneficiary of the estate of her father, the Plaintiff has the legal standing to file a claim where part of the estate is unlawfully transferred. 3. It is my finding in regard to the fourth issue that the 4th Defendant’s preliminary objection does not raise pure points of law because it is not a point of law whether the requisite statutory notices were issued or not. There is a serious triable issue of whether the suit property was lawfully transferred. If the acquisition is not lawful, it affects the 4th Defendant. This is not a pure point of law. It is a point of fact to be proved or disproved by evidence to be adduced at the trial. 4. I need not make any finding on the sixth issue because it has already been determined in the fourth issue. See paragraph **[12]** above. 5. It is a draconian move to strike out a suit. It has been held in the case of **D.T. Dobie and Co. Ltd vs Muchina Civil Appeal No. 37/1978** that a Court of law should aim to sustain a suit rather than dismiss it, unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action. Be that as it may, this is a case where the Plaintiff chose to lie on oath and institute this suit when there is a pending succession cause where she and the Defendants herein are parties and that other suit relates to the suit parcels in this case. The Plaintiff has nothing to lose because she will be able to ventilate her case in the succession cause. The Plaintiff cannot be allowed to abuse the Court process by having two parallel suits proceeding at the same time over the same subject matter and between the same parties. Under **Order 2 rule 15(1) (d) of the Civil Procedure Rules**, I strike out the Plaintiff’s suit for being an abuse of the process of the Court. Costs to the Defendants. **Dated, Signed and Delivered virtually at Murang’a this 20th day of May, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony.** **Plaintiff ‘s Counsel – Mr Koira.** **1st and 2nd Defendants’ Counsel – Mr Kuria.** **3rd Defendant’s Counsel – Miss Nyawira.** **4th Defendant’s Counsel – Miss Katao holding brief.**