https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4774

Karonei (Suing as the Legal Representative of the Estate of Karonei Koskei Deceased) v Murgor (Environment and Land Case E004 of 2026) [2026] KEELC 4774 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEELC 4774 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Environment and Land Case E004 of 2026 GMA Ongondo, J July 22, 2026 Between Stella Jepngetich Karonei (Suing as the Legal Representative of the Estate of Karonei Koskei Deceased) Plaintiff and Kiptoo arap Murgor Defendant Ruling Introduction 1.This ruling is in regard to a notice of preliminary objection dated 9th March 2026 filed by the Defendant through M/S Kipkorir Kipkorir CK & Company Advocates based upon the following grounds;a.That the Plaintiff’s claim is incompetent and improperly before this Honourable Court as it goes against Section 94 of the Land Registration Act that deals with tenants in common.b.That the Plaintiff’s claim offends Section 46 of the Land Registration Regulations Act which provides that no person shall intermeddle with the free property of a deceased person except as authorized by law. The Plaintiff’s suit amounts to intermeddling as the estate is under lawful administration by the Defendant.c.That the suit is therefore fatally defective, vexatious, and an abuse of the court process. 2.The preliminary objection is in opposition to a Plaint dated 3rd February 2026, which originated the suit by the Plaintiff through Bitok & Sambu Advocates seeking the following prayers;a.A Declaration that a constructive trust arises over the 3.0 acres portion of parcel Number Nandi/Kamoiywo/325 (The suit property herein) as against the defendant in favor of the estate of Karonei Kosgei – Deceased.b.A declaration that the Defendant hold the title to the 3.0acre portion of the suit property in trust for the estate of Karonei Kosgei – Deceased.c.A declaration that trust held by the Defendant over the 3.0 acre portion in the suit property in favour of the estate of Karonei Kosgei – Deceased be and is hereby terminated.d.An order directing the Land Registrar, Nandi County and the County Surveyor to visit the suit property subdivide it so that the estate of Karonei Kosgei gets 8 acres while the defendant gets 6.4 acres and thereafter register the resultant subdivisions accordingly.e.That the OCS Mosoriot police station do provide security and ensure observance of law and order during the survey exercise aforesaid.f.Costs of this suit.g.Any other order this Honourable Court deems fit. 3.The Defendant filed their statement of defense and counter claim dated 4th March 2026 through Kipkorir Kipkorir CK & Company Advocates. In their defense, hey vehemently denied the allegations raised in the Plaint and subsequently filed the preliminary of objection which is the subject of this ruling. 4.The preliminary objection came up for hearing on 18th June 2026 when both parties agreed to proceed with its hearing by way of written submissions. Plaintiff Submissions 5.The Plaintiff filed her submissions dated 12th June 2026 through her advocates on record Bitok & Sambu Advocates opposing the preliminary objection by relying on several authorities among them, the Supreme Court decision in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others (Application 50 of 2014) [2015] KESC 23 (KLR) where the court stated:“Thus a preliminary objection may only be raised on a “pure question of law”, To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 6.The Plaintiff submitted further that the Defendant has averred that the Plaintiff’s claim is incompetent and improperly before the Court, contending that it offends section 94 of the Land Registration Act, which governs tenants in common. They reproduced the said Section 94 (1) which reads:Any of the tenants in common may, with the consent of all the tenants in common, make an application, in the prescribed form, to the Registrar for the partition of land occupied in common and subject to the provisions of this Act and of any other written law applying to or requiring consent to a sub-division of land and of any covenants or conditions in a certificate of title or certificate of lease, the Registrar shall effect the partition of the land in accordance with the agreement of the tenants in common. 7.The Plaintiff submitted that the defendant failed to demonstrate how the Plaintiff’s claim is rendered inappropriate by reference to Section 94 of the Land Registration Act which governs the partition of property in common. However, her claim relates to distinct portion of land in which the deceased’s estate asserts an overriding interest in the nature of constructive trust. 8.On the issue of the second ground of the preliminary objection, the Plaintiff submitted that the law relied upon was inexistent. That even if they had cited the correct law namely Section 45 (1) of the Law of Succession Act, the Plaintiff would be covered because she obtained grant of letters of administration ad litem which conferred upon her the authority to file the suit. Defendant’s Submissions 9.The Defendant filed his submissions dated 26th March 2026 through Kipkorir Kipkorir CK & Company Advocates in supported the preliminary objection and based their submissions on three issues namely:i.Whether there was a co-tenancy?ii.What laws govern co-tenancy?iii.What happens when a co-tenancy dies? 10.The defendant submitted extensively on the three issues above insisting that there was admission by the Plaintiff that the suit property was owned in common and relied on Section 94 of the Land Registration Act that deals with tenants in common. The Defendant did not submit on the second and third grounds in the preliminary objection which touch on intermeddling by the Plaintiff in filling the suit and on the suit being fatally defective respectively. Issues for Determination 11.I have considered the parties’ respective pleadings, submissions and authorities cited therein. I finds only one issue for determination namely whether or not the preliminary objection is merited. Analysis 12.In the case of Mukisa Biscuit Manufacturing Co. Ltd. Versus West End Distributors Ltd. [1969] E.A. 696, it was held thus;“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of 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 …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.” 13.Further, in Aviation & Allied Workers Union Kenya versus Kenya Airways Ltd & 3 others (Application 50 of 2014) [2015] KESC 23 (KLR) the Supreme Court of Kenya stated;“Thus a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper consent as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 14.The Defendant asserted that the Plaintiff’s claim is incompetent and improperly before this Honourable Court hence, offends Section 94 of the Land Registration Act, which governs tenants in common. Section 94 of the Acct provides for the process of partitioning land held in common. Take into account Section 94(1) (supra) in entirety. 15.On the other hand, the plaintiff submitted that their suit is about ownership and occupation of larger piece of land than what is indicated as the share of each party in the register. They contend that the claim as pleaded in the Plaint does not seek partition under Section 94 (supra) but rather relates to a distinct portion of land in which the deceased’s estate claims an overriding interest. Determination 16.This Court has considered the rival arguments and the various authorities relied upon by parties. I am guided by the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd. Versus West End Distributors Ltd. [1969] E.A. 696 where the Court of Appeal held as follows;“(…)it (a preliminary objection) 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 (emphasis added). 17.It is crystal clear from the pleadings that several facts are in dispute herein. Upon noting the entire preliminary objection, and without interacting with the facts of the case, this Court is invited, by the said preliminary objection, to interrogate other evidence and question witnesses in order to determine it. In Aviation & Allied Workers Union Kenya versus Kenya Airways Ltd & 3 others (Application 50 of 2014) [2015] KESC 23 (KLR) the Court observed that,“to discern such a point of law, the Court has to be satisfied that (…) the facts are deemed agreed, as they are prima facie presented in the pleadings on record (emphasis added). “ 18.On that account, I arrive at the inescapable conclusion that the first ground which touches on applicability of Section 94 of the Land Registration Act 2016 (2012) does not raise a pure point of law as anticipated. Therefore, the same fails. 19.On the second ground, this Court is persuaded by the Plaintiff that the law providing for intermeddling in a deceased person’s property is Section 45 of the Law of Succession Act (Cap 160 Laws of Kenya). In this case, intermeddling would arise in the event that the Plaintiff failed to obtain the necessary authority to file the suit herein. However, the Court is fully conscious of the Limited Grant of Letters of Administration Ad Litem dated 27th July 2026 and filed as part of the Plaintiff’s documents. To include such a ground in a preliminary objection having had sight of the Limited Grant issued by a court of competent jurisdiction, would be undesirable and unfair. Thus, this ground must suffer the unavoidable fate of being found untenable. 20.Having disallowed the first two grounds of the preliminary objection, it follows that the third and final ground lose the limbs upon which to stand. The same are devoid of merit and fail. 21.In the result, this court makes the following orders:i.That the Notice of Preliminary Objection dated 9th March 2026 is not merited hence, it is dismissed.ii.That the suit herein to be set down for pre-trial conference.iii.That the costs of this preliminary objection be in the cause 22.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 22ND DAY OF JULY, 2026.HON. G M A ONGONDOJUDGEIn the presence of;1. Mr. Keter learned counsel for the defendant2. Mr. Walter Kipkorir, court assistant