RULING
A. Background
1. The deceased Reuben Nabibia Wangokho, a then polygamist, whose estate is the subject of this cause died intestate on 13Th May 1983. He had two households and was survived by seven daughters and four sons.
2. The distribution of his estate was contested, and a judgment was eventually delivered by my brother Justice D. Kemei on 28.7.2023, by ordering equal distribution of the properties of the estate among the beneficiaries.
3. On 30.5.2024 the said judgment was reviewed, and Agnes Nasombi and Benjamin Masibo Nabibia were appointed as administratrix and administrator respectively of the estate of the deceased. The court ordered that a certificate of confirmation of grant to issue in their names. The certificate of confirmation of grant was issued by the court on 23.7.2024.
B. Application
4. Vide a Notice of Motion dated 31.5.2024, the 2nd administratrix, Agnes Nasombi Wanyama craved for provision of security by the OCPD Bungoma through the nearest police station at the time of survey of land parcels No Kimilili/Kimilili/74 and Ndivisi/Makuselwa/518 and that all the beneficiaries be ordered to share the cost of the survey exercise. The administratrix also craved that the costs of this application be provided for.
5. In reaction to this application, six beneficiaries namely Concepta Khanjila Wanjala, Richard Wekhomba Nabachenja, Gabriel Muchumbeli, Grace Nyongesa, Pius Wafula Mwembe and Metrine Wafula filed a notice of preliminary objection dated 22.7.2024, wherein they raised three grounds as outlined hereunder:
i) The applicant does not have the locus standi to institute and prosecute the application by dint of the clear provisions of section 80(2) of the Law of Succession Act Chapter 160 laws of Kenya.
ii) The application as filed is directed at unnamed and unidentified beneficiaries of the estate contrary to the requirements that parties should never be condemned unheard as enshrined at article 50 of the Constitution of Kenya.
iii) That the application is premature and a complete abuse of the process of the Honourable court.
C. Submissions
6. The preliminary objection was canvassed by way of written submissions.
7. The movers of the preliminary objection have submitted that given the fact that the hard copy of the certificate of confirmation of grant was issued on 23.7.2024 and not on 30.5.2024 when the orders were made appointing Benjamin Masibo Nabibia and Agnes Nasombi Wanyama as administrators of the estate of the deceased, the applicant had no locus standi to institute the Notice of Motion dated 31.5.2024. They maintain that as per section 80 (2) of the Law of Succession Act, a grant takes effect as from the date of issuance of the physical document and that the act of moving the court prior to such issuance contravenes the provisions od section 45 of the Law of Succession and that the applicant is at best an intermeddler.
8. No submissions were tendered in support of the remaining two grounds of the preliminary objection.
9. The Applicant submitted that she was appointed as an administratrix of the estate of the deceased on 30.5.2024 and that the hard copy of the letters of administration were issued on 23.7.2024. It is her stand that the provision of section 80(2) of the Law of Succession Act are not cast in stone and that this court should consider substantive justice as enshrined under article 159 (2) (d) of the Constitution and disregard procedural technicalities.
10. The applicant posits that she has not infringed upon the six beneficiaries’ right to be heard given that they were duly heard in their application dated 9.11.2023 which was determined on 30.5.2024. Further that the right to be heard also demands for timely determination of a case yet the beneficiaries were out to delay the distribution of the estate of the deceased.
11. The 2nd administratrix submits that her prayer for provision of security is timeously made and is aimed at facilitating the execution of the judgment of this court delivered herein on 30.5.2024.
D. Analysis and determination
12. Upon considering the preliminary objection and the rival submissions of the six beneficiaries and the applicant/ 2nd administrator, the sole issue that emerges for determination is whether the preliminary objection raised is sustainable.
13. A preliminary objection is defined by The Black’s Law Dictionary as
“…an objection that, if upheld, would render further proceedings before the tribunal unnecessary”.
14. The locus Classica on preliminary objection is the case of Mukisa Biscuits Manufacturers Ltd VS West End Distributors Ltd (1969)EA696, where the court rendered a definition of a preliminary of a preliminary objection as follows: -
“ ,,,so far as I am aware, 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.”
15. In the same case, Lord Charles Newbold, President held that:
“ A preliminary Objection is in the nature of what used to be a demurer 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 exercisee of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”
16. The salient elements of a preliminary objection are as follows:
i) Raises pure points of law and does not require the court to ascertain the same through evidence.
ii) Facts are Taken as true; the court looks at the objection by assuming all the facts written by the other side are true
iii) Facts are undisputed: it cannot be sustained if any fact is contested and has to be proved.
iv) No Judicial Discretion: It deals with clear legal issues and does not require the exercise of judicial discretion
v) Determines the case: the point of law must be strong enough to completely determine the the case or application at an interlocutory stage.
17. It is common ground that the applicant herein was appointed as an administratrix on 30.5.2024 and a hard copy of the letters of administration was issued by the court on 23.7.2024. She filed her application on 31.5.2024. Clearly the applicant was legally and lawfully an administratrix of the estate of the deceased as at the date of her appointment and she had no control over the date of issue of the grant of letters of administration by the court. I thus find that the applicant did not contravene the provisions of section 45 of the Law of Succession Act which forbids dealings in the properties of the estate of a deceased person prior to the grant of representation, when she moved this court. It is apparent that the applicant herein was undertaking her duties as an administratrix with diligence and speed with a view of ensuring that the judgment of this court is executed by way of distribution of the estate of the deceased to it’s beneficiaries. The averment by the six beneficiaries that the application herein was premature bespeaks of their inherent intention to procrastinate the distribution process, yet they will benefit from such distribution.
18. Given that this court has already rendered a judgment, the applicant and her co – administrator are duty bound by the provisions of section 83(g) of the Law of Succession Act to complete the administration of the estate of the deceased within six months from the date of confirmation of grant or such longer period as the court may allow.
19. The beneficiaries of the estate of the deceased were duly served with this application hence their decision to raise a preliminary objection. I thus find that they have fully participated in these proceedings and they have effectively exercised their right to be heard. They cannot then turn around and plead infringement of their right to a fair hearing yet their own application informed the delivery of the judgment on 30.5.2024: their conduct epitomizes a classic example of conduct amounting to abuse of court process and this court shall not condone such conduct. In any event litigation must come to an end.
E. Conclusion
20. On the balance I do find that the preliminary objection dated 22.7.24 raised by the six beneficiaries is unsustainable and I therefore overrule it with costs to the applicant/ 2nd administratrix accessed at Ksh 30,000 payable within 60 days from the date hereof and in default execution to issue.
Delivered, Dated and Signed at Milimani this 15th day of June 2026.
Mwanaisha. S. Shariff
Judge
A. Background
1. The deceased Reuben Nabibia Wangokho, a then polygamist, whose estate is the subject of this cause died intestate on 13Th May 1983. He had two households and was survived by seven daughters and four sons.
2. The distribution of his estate was contested, and a judgment was eventually delivered by my brother Justice D. Kemei on 28.7.2023, by ordering equal distribution of the properties of the estate among the beneficiaries.
3. On 30.5.2024 the said judgment was reviewed, and Agnes Nasombi and Benjamin Masibo Nabibia were appointed as administratrix and administrator respectively of the estate of the deceased. The court ordered that a certificate of confirmation of grant to issue in their names. The certificate of confirmation of grant was issued by the court on 23.7.2024.
B. Application
4. Vide a Notice of Motion dated 31.5.2024, the 2nd administratrix, Agnes Nasombi Wanyama craved for provision of security by the OCPD Bungoma through the nearest police station at the time of survey of land parcels No Kimilili/Kimilili/74 and Ndivisi/Makuselwa/518 and that all the beneficiaries be ordered to share the cost of the survey exercise. The administratrix also craved that the costs of this application be provided for.
5. In reaction to this application, six beneficiaries namely Concepta Khanjila Wanjala, Richard Wekhomba Nabachenja, Gabriel Muchumbeli, Grace Nyongesa, Pius Wafula Mwembe and Metrine Wafula filed a notice of preliminary objection dated 22.7.2024, wherein they raised three grounds as outlined hereunder:
i) The applicant does not have the locus standi to institute and prosecute the application by dint of the clear provisions of section 80(2) of the Law of Succession Act Chapter 160 laws of Kenya.
ii) The application as filed is directed at unnamed and unidentified beneficiaries of the estate contrary to the requirements that parties should never be condemned unheard as enshrined at article 50 of the Constitution of Kenya.
iii) That the application is premature and a complete abuse of the process of the Honourable court.
C. Submissions
6. The preliminary objection was canvassed by way of written submissions.
7. The movers of the preliminary objection have submitted that given the fact that the hard copy of the certificate of confirmation of grant was issued on 23.7.2024 and not on 30.5.2024 when the orders were made appointing Benjamin Masibo Nabibia and Agnes Nasombi Wanyama as administrators of the estate of the deceased, the applicant had no locus standi to institute the Notice of Motion dated 31.5.2024. They maintain that as per section 80 (2) of the Law of Succession Act, a grant takes effect as from the date of issuance of the physical document and that the act of moving the court prior to such issuance contravenes the provisions od section 45 of the Law of Succession and that the applicant is at best an intermeddler.
8. No submissions were tendered in support of the remaining two grounds of the preliminary objection.
9. The Applicant submitted that she was appointed as an administratrix of the estate of the deceased on 30.5.2024 and that the hard copy of the letters of administration were issued on 23.7.2024. It is her stand that the provision of section 80(2) of the Law of Succession Act are not cast in stone and that this court should consider substantive justice as enshrined under article 159 (2) (d) of the Constitution and disregard procedural technicalities.
10. The applicant posits that she has not infringed upon the six beneficiaries’ right to be heard given that they were duly heard in their application dated 9.11.2023 which was determined on 30.5.2024. Further that the right to be heard also demands for timely determination of a case yet the beneficiaries were out to delay the distribution of the estate of the deceased.
11. The 2nd administratrix submits that her prayer for provision of security is timeously made and is aimed at facilitating the execution of the judgment of this court delivered herein on 30.5.2024.
D. Analysis and determination
12. Upon considering the preliminary objection and the rival submissions of the six beneficiaries and the applicant/ 2nd administrator, the sole issue that emerges for determination is whether the preliminary objection raised is sustainable.
13. A preliminary objection is defined by The Black’s Law Dictionary as
“…an objection that, if upheld, would render further proceedings before the tribunal unnecessary”.
14. The locus Classica on preliminary objection is the case of Mukisa Biscuits Manufacturers Ltd VS West End Distributors Ltd (1969)EA696, where the court rendered a definition of a preliminary of a preliminary objection as follows: -
“ ,,,so far as I am aware, 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.”
15. In the same case, Lord Charles Newbold, President held that:
“ A preliminary Objection is in the nature of what used to be a demurer 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 exercisee of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”
16. The salient elements of a preliminary objection are as follows:
i) Raises pure points of law and does not require the court to ascertain the same through evidence.
ii) Facts are Taken as true; the court looks at the objection by assuming all the facts written by the other side are true
iii) Facts are undisputed: it cannot be sustained if any fact is contested and has to be proved.
iv) No Judicial Discretion: It deals with clear legal issues and does not require the exercise of judicial discretion
v) Determines the case: the point of law must be strong enough to completely determine the the case or application at an interlocutory stage.
17. It is common ground that the applicant herein was appointed as an administratrix on 30.5.2024 and a hard copy of the letters of administration was issued by the court on 23.7.2024. She filed her application on 31.5.2024. Clearly the applicant was legally and lawfully an administratrix of the estate of the deceased as at the date of her appointment and she had no control over the date of issue of the grant of letters of administration by the court. I thus find that the applicant did not contravene the provisions of section 45 of the Law of Succession Act which forbids dealings in the properties of the estate of a deceased person prior to the grant of representation, when she moved this court. It is apparent that the applicant herein was undertaking her duties as an administratrix with diligence and speed with a view of ensuring that the judgment of this court is executed by way of distribution of the estate of the deceased to it’s beneficiaries. The averment by the six beneficiaries that the application herein was premature bespeaks of their inherent intention to procrastinate the distribution process, yet they will benefit from such distribution.
18. Given that this court has already rendered a judgment, the applicant and her co – administrator are duty bound by the provisions of section 83(g) of the Law of Succession Act to complete the administration of the estate of the deceased within six months from the date of confirmation of grant or such longer period as the court may allow.
19. The beneficiaries of the estate of the deceased were duly served with this application hence their decision to raise a preliminary objection. I thus find that they have fully participated in these proceedings and they have effectively exercised their right to be heard. They cannot then turn around and plead infringement of their right to a fair hearing yet their own application informed the delivery of the judgment on 30.5.2024: their conduct epitomizes a classic example of conduct amounting to abuse of court process and this court shall not condone such conduct. In any event litigation must come to an end.
E. Conclusion
20. On the balance I do find that the preliminary objection dated 22.7.24 raised by the six beneficiaries is unsustainable and I therefore overrule it with costs to the applicant/ 2nd administratrix accessed at Ksh 30,000 payable within 60 days from the date hereof and in default execution to issue.
Delivered, Dated and Signed at Milimani this 15th day of June 2026.
Mwanaisha. S. Shariff
Judge