Before this Court is the Defendant’s Notice of Preliminary Objection dated 10th February 2026 challenging the jurisdiction of this Court and seeking the striking out of both the suit and the Notice of Motion dated 22nd January 2026.
The Plaintiff filed the present suit claiming proprietary and equitable interests over land parcel No. KYENI/MUFU/11474 and seeks injunctive reliefs to protect his occupation thereof. The Defendant contends that the dispute is res judicata, falls within succession jurisdiction, seeks to challenge the Judgment rendered in Embu HCFA No. E003 of 2025, and that this Court lacks jurisdiction to entertain the matter.
The law regarding preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, a preliminary objection must raise a pure point of law capable of disposing of the matter without requiring ascertainment of contested facts.
Having considered the pleadings, the Preliminary Objection and the submissions on record, the issues arising are:
a) Whether this Court has jurisdiction to entertain the suit.
b) Whether the suit is res judicata.
c) Whether the Preliminary Objection is sustainable.
On jurisdiction, the Defendant argues that the dispute arises from succession proceedings and that the Plaintiff is effectively inviting this Court to sit on appeal against the Judgment delivered in Embu HCFA No. E003 of 2025.
It is not disputed that HCFA No. E003 of 2025 arose from succession proceedings relating to the Estate of Ezekiel Kareko alias Ezekiel Kareko Kangethe (Deceased). However, the present pleadings disclose a dispute concerning occupation, possession, proprietary rights and alleged interference with land parcel No. KYENI/MUFU/11474. These are matters falling within Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.
The Supreme Court in Republic v Karisa Chengo & 2 Others emphasized that courts established under Article 162(2) are specialized courts exercising distinct and exclusive jurisdiction from that exercised by the High Court. Consequently, the fact that a succession court previously dealt with distribution of an estate does not automatically oust the jurisdiction of the Environment and Land Court where a dispute concerning ownership, occupation, use, title or interests in land subsequently arises.
The Plaintiff's claim is that apart from the succession proceedings, he acquired additional rights and interests in the suit property arising from occupation, developments undertaken on the land and agreements allegedly entered into with beneficiaries of the estate. Whether those claims are meritorious is a matter for evidence at trial. At this stage, the Court cannot conclusively determine that the dispute is purely a succession dispute.
The Defendant further contends that the suit is res judicata. For Section 7 of the Civil Procedure Act to apply, the matter directly and substantially in issue must have been heard and finally determined between the same parties by a court of competent jurisdiction.
Although HCFA No. E003 of 2025 determined issues concerning the implementation and rectification of the confirmed grant, the pleadings before this Court raise questions relating to proprietary interests, occupation, alleged equitable rights and interference with possession of the suit land. Whether those issues were directly and substantially determined in the succession proceedings can only be established upon examination of evidence and the proceedings in the earlier matters. Such an inquiry goes beyond the scope of a pure preliminary objection.
Similarly, the Defendant's assertions that the suit property has since been subdivided, that the Defendant has been improperly sued, that the Court lacks pecuniary jurisdiction, and that the Plaintiff has failed to satisfy the Giella principles all require factual interrogation and cannot properly be determined as preliminary points of law.
In the circumstances, this Court finds that the issues raised in the Preliminary Objection are either intertwined with disputed facts or are matters requiring evidentiary interrogation. The objection therefore falls outside the parameters set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.
Accordingly, the Court finds that the Preliminary Objection dated 10th February 2026 is not merited.
ORDERS
1. The Defendant's Preliminary Objection dated 10th February 2026 is hereby dismissed.
2. The Court finds that it has jurisdiction to hear and determine the dispute as pleaded, subject to evidence to be adduced at the hearing.
3. The Notice of Motion dated 22nd January 2026 shall proceed to hearing on its merits.
4. Costs of the Preliminary Objection shall be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED AT EMBU THIS 05TH DAY OF JUNE, 2026.
HON. E.C CHERONO
ELC JUDGE
In the presence of;
1. M/S Muthama for the Plaintiff/Applicant
2. M/S Moturi for the Defendant/Respondent
3. Ruth C/A