https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3466

Sainepo & another v Karasha & another (Land Case E125 of 2024) [2026] KEELC 3466 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3466 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Land Case E125 of 2024 J Omange, J May 28, 2026 Between Karasha Kevin Sainepo 1st Plaintiff Simeon Joseph Ole Karasha 2nd Plaintiff and Alfred Sankale Karasha Defendant and Karasha Edward Sayianka Proposed Interested Party Ruling 1.At the heart of the dispute is the estate of Sarah Njoki Karasha whose estate it is common ground is subject of Succession proceedings in Kajiado High Court Succession Cause No E 014 of 2022. 2.On the 6th October 2014, the Defendant who was then the Plaintiff and another filed a suit seeking amongst other reliefs an order that the current 2nd Plaintiff who was then the 1st Defendant , who is the deceased’s husband was holding Ngong/ Ngong/ 506 in trust for the Defendants. In a Judgement delivered on 7th June 2021, this court in ELC 937 of 2017 found that the 1st Defendant, Simeon Ole Karasha was holding the land in trust for the beneficiaries of the late Sarah Kerasha and further found that Plaintiff Alfred Karasha Sankale was entitled to 4 acres which the 1st Defendant was ordered to transfer to him. 3.Not satisfied with this determination, the Plaintiff filed an application for review seeking an amendment of the order to include that all resultant sub divisions be declared to be the estate of Sarah Njoki Karasha and that these sub divisions be cancelled. This application failed and indeed the learned Judge commented that the issues issues that should be addressed by a Probate and Administration Court. 4.In the meantime, the 1st Plaintiff herein has filed the present suit as the Grandchild of the deceased Sarah Karasha jointly with his grandfather seeking orders that 64002 which was one of the sub divisions of Ngong / Ngong 506 be transferred to the Plaintiffs. 5.While the matter was ongoing the proposed interested party has filed an application seeking to be enjoined to this suit. This application is strenuously opposed by the Defendant who has also raised a preliminary objection to the application. The two parties filed submissions which are summarized below. 6.The Preliminary Objection by the Defendant dated 30th September 2025 seeks dismissal of the Proposed Interested Party’s Application dated 29th July 2025 on grounds that:i.That the Application offends the sub-judice rule under Section 6 of the Civil Procedure Act, since the issues raised are similar issues raised in High Court at Kajiado Succession Cause No. E014 of 2022 In the Matter of the Estate of Sarah Njoki Karasha (Deceased), which involves same parties, same subject property (Ngong/Ngong/506 and its subdivisions) and is pending determination.ii.This Court lacks jurisdiction, as the issues raised by the proposed Interested Party are matters of Administration which fall within the Succession Court. 7.The Proposed Interested party opposes the Preliminary Objection and states that as a co administrator of the estate, it is imperative that he be enjoined to the suit so as to enable the court obtain all the facts around this case. 8.In the submissions on behalf of the Proposed Interested Party is emphatic that the issue of Ngong / Ngong/ 506 and its sub divisions were fully addressed in the earlier matters. 9.On the other hand, counsel for the Proposed Interested Party urged the court to allow the applicant to be enjoined to the proceedings so as to allow them an opportunity to raise the substantive legal issues regarding the case. Counsel for the Plaintiffs did not participate in the matter. 10.Having considered the submissions by both counsels the court distills the following issues for determination; Whether the Preliminary Objection has merit Whether the proposed interested party should be enjoined as an interested party Whether the suit is sub judice or res judicata 11.The law on Preliminary Objections is well settled in the celebrated case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors [1969] EA 696. This position has been consistently upheld, including by the Supreme Court, which emphasized that a preliminary objection must be based strictly on uncontested facts and pure points of law. See Charo v Mwashetani & 3 others [2014] KESC 5 (KLR):“… 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…” 12.The Defendant’s objection is premised on grounds that that the Application is sub judice under Section 6 of the Civil Procedure Act; and that this Court lacks jurisdiction as the issues fall within the Succession Court. The objection appears to be more relevant to the suit entire suit than to the application to joinder. I will return to the issue shortly when considering the issue of sub judice. 13.On the issue of joinder, the proposed interested party is a co administrator of the estate. As a co administrator, they will be a necessary party who will enable the court to be able to effectually and completely adjudicate on all issues in the suit. As such I find that should this matter proceed, the proposed interested party will be a necessary party. As such the application for joinder is allowed. 14.On the third issue of sub judice, I have considered the Judgement in ELC 937 of 2017 and the subsequent Ruling and on the face of it, it is clear that the court already made a determination on Ngong/ Ngong / 506 and its resultant sub divisions of which 64002 is one. 15.It is also evident that the current 2nd Plaintiff was declared to be holding all the land in trust on behalf of the estate. It is not disputed that this estate is still undergoing administration and all the parties herein are either beneficiaries or administrators. They are all parties whose interests can be determined within the Succession Court which have wide powers to preserve estates of a deceased. The Succession Court can also refer complex land disputes not involving the beneficiaries to the ELC Court. 16.Given that it has not been demonstrated at this stage that the Succession Court has completed administration of the estate and considering that all parties herein are parties whose interests I reiterate can be determined within the pending Succession matter, I find that this matter must be stayed until completion of the Succession Case. 17.The court therefore makes the following orders;a.This suit is stayed pending determination of Kajiado Succession Cause No E 014 of 2022. In the matter of estate of Sarah Njoki Karasha ( Deceased).b.The Proposed Interested Party is enjoined to the suit herein. Directions as to filing of documents of the Interested Party will be issued once the Succession Cause is concluded.c.Costs shall abide the outcome of the main suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH DAY OF MAY 2026.JUDY OMANGEJUDGE.In the presence of:Mr Odawa for Plaintiff.MS Gichuki for Defendant.Peter – Court Assistant.