'1. Before this court is a Notice of Motion application dated 8th August 2023, vide which the applicant seeks the following orders:-
a. Spent;
b. Spent;
c. Spent;
d. That pending the hearing and final determination of this suit this honourable court be pleased to restrain the respondents, their agents, servants and or any other persons acting on their own behalf, or on behalf of the respondents, from howsoever trespassing, entering, encroaching, remaining in, subdividing, surveying, taking over, beaconing, dispossessing, alienating, reclaiming, fencing, removing any fence, gate or padlocks, dumping, making any constructions, and or harassing the applicant or interfering with his peaceful entitlement, occupation and possession of Title Number KIINE/GACHARO/395;
e. That pending the hearing and determination of this suit, this honourable court be pleased to issue an order of inhibition restraining any dealings of any nature whatsoever on Title Number KIINE/ GACHARO/395 without the express approval and consent of the applicant;
f. That this honourable court be pleased to give such other order or relief that it may deem fit to grant; and
g. That the costs of this application be provided for.
2. The application is premised on the grounds stated therein and also on the undated supporting affidavit of the applicant.
3. Vide the said affidavit, the applicant stated that on 10th January 2023, he filed a caveat against the subject property, which is part of the undistributed estate of the deceased herein. He deposed that the letter dated 10th July 2023 by the 3rd and 4th respondents'' advocate intends to rescind the sale agreement entered into between himself and the appointed administrators. The 1st administrator is now deceased.
4. He further stated that he purchased the land from the administrators in 2012 via a sale agreement dated 30th January 2012 at a purchase price of Kes.5,000,000/-, out of which he paid Kes.850,000/-. The efforts to complete the sale culminated in a decision to activate Land Control Board proceedings in Ndia; however, their advocate informed them that the details captured in the grant of representation were incorrect and that the grant needed to be rectified first. The administrators filed an application for rectification dated 19th April 2012, which was never prosecuted. His efforts to complete the process were unfruitful due to the family''s feud over the estate.
5. He averred that he was never informed of the death of the 1st administrator and that on 10th July 2023, unidentified people invaded the suit property and dumped building materials on it without his consent, forcing him to seek legal redress. On the said date, he also received a letter from the advocates of the 3rd and 4th respondents, purporting to rescind the 2012 sale agreement. The matter is still pending before the court, awaiting the appointment of new administrators and confirmation of the grant, and thus, the 3rd and 4th respondents have no authority or power to terminate the said sale agreement.
6. He stated that he is seeking protection of his rights by the court as an innocent purchaser and urged the court to allow the application.
7. The respondent responded to the application through a Preliminary Objection dated 29th August 2023, stating that the application herein is hopelessly misconceived, frivolous, totally devoid of merit, and mala fides for reasons that this honourable court has no jurisdiction to hear and determine the application as filed.
8. The application was canvassed by way of written submissions.
9. The applicant, through his advocates, MKN & Company Advocates, filed his written submissions dated 14th November 2023.
10. Counsel submitted that the facts of the application are that the administrators of the estate of the deceased herein sold the suit property by way of a sale agreement dated 30th January 2012 to the applicant for Kes.5,000,000/-, wherein they granted the applicant possession of the suit property. However, the transfer was not finalized as the vendors never supplied the applicant with the completion documents as agreed. The respondents have attempted to take possession of the suit property by force, on the basis that the initial sale is revoked. It was submitted that the applicant has a justiciable and sustainable interest in the suit property and the estate of the deceased.
11. On the issue of jurisdiction counsel relied on Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules and submitted that the question in this matter is whether the deceased is the proprietor of the suit property fact which has not been disputed as the title of the said property is in the name of the deceased and thus there was no need for the parties to move to the Environment and Land Court. The interest of the applicant in the estate of the deceased can only be determined through a protest, objection, or an intervention of whatever nature or character raised by any party who has a claim against the estate.
12. Counsel submitted that the respondents admitted to the sale and even offered the applicant a refund of the purchase price paid. The applicant''s interest has to be heard and determined before the grant of representation is confirmed and the distribution of the estate is done.
13. Counsel relied on several authorities and submitted that this court has jurisdiction to hear and determine the application and to answer the question whether the applicant has an interest in the estate of the deceased and the suit property. Counsel urged the court to give directions on the same.
14. Counsel further submitted that the preliminary objection is bad in law and incompetent as it invites the court to determine factual matters without interrogation of the evidence. It was submitted that a preliminary objection can only be raised where facts are not disputed, which is not the case in the matter herein, as the issues raised can only be determined upon taking evidence of the parties. Counsel urged the court to allow the application and give directions on the hearing of the issues raised by the applicant.
15. I have considered the application, the preliminary objection, and the submissions by the applicant, and the issues for determination are:-
a. Whether the preliminary objection has merit; and
b. Whether the orders sought should issue.
16. On whether the preliminary objection has merit, the same is based on the reason that this court has no jurisdiction to hear and determine this application on the basis that it seeks to look into the ownership of the suit property.
17. The Court of Appeal in MUKISA BISCUITS MANUFACTURING LTD-VS- WEST END DISTRIBUTORS (1969) EA 696 observed that:-
"…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, a plea of limitation, or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration."
In the same case, Sir Charles Newbold, P. stated:-
"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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop".
18. The objection in this case is in regard to jurisdiction. The respondents aver that the issues raised by the applicant concern the title to the land and that, for that reason, this Court has no jurisdiction. Is that the case?
19. Article 165(5) of the Constitution of Kenya, 2010 provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2). Article 162(2) provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and use and occupation of, and title to land.
20. The foregoing Constitutional provision is given effect by section 13 of the Environment and Land Court Act, which provides as follows:-
“(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land…”
21. The claim by the applicant is that he bought the land from the administrators. The main issue, in my view, is the use and occupation of land, not a claim for money from the estate. That being the case, I am not persuaded that this Court has jurisdiction to hear and determine the matter.
22. I am guided by the decision of the Court in Peter Mukhunya Maloba v Dennis Kusinyo [2020] eKLR, where it was held that:-
“The dispute that was before the trial court related to the sale of land, which is regulated by the Land Registration Act and the Land Act. Contracts relating to sale of land are about title, for the agreement concerns conveyance of the title in the land from the vendor to the purchaser. After sale, transfer should follow. All these processes are regulated and governed by the Land Act and the Land Registration Act, and any dispute arising from the same ought to be a matter for resolution by the Environment and Land Court, as envisaged by the Land Act and the Land Registration Act.”
23. The upshot of the foregoing is that this Court has no jurisdiction to hear and determine the matter as the dispute relates to the occupation, use, and title to land. In the circumstances, I uphold the preliminary objection and dismiss the notice of motion dated 8th August 2023.
24. Given the nature of the matter, I order that each party bears/their own costs.
25. It is so ordered.
Dated and signed this 9th day of April 2024. Delivered virtually through Microsoft TEAMS.
'
a. Spent;
b. Spent;
c. Spent;
d. That pending the hearing and final determination of this suit this honourable court be pleased to restrain the respondents, their agents, servants and or any other persons acting on their own behalf, or on behalf of the respondents, from howsoever trespassing, entering, encroaching, remaining in, subdividing, surveying, taking over, beaconing, dispossessing, alienating, reclaiming, fencing, removing any fence, gate or padlocks, dumping, making any constructions, and or harassing the applicant or interfering with his peaceful entitlement, occupation and possession of Title Number KIINE/GACHARO/395;
e. That pending the hearing and determination of this suit, this honourable court be pleased to issue an order of inhibition restraining any dealings of any nature whatsoever on Title Number KIINE/ GACHARO/395 without the express approval and consent of the applicant;
f. That this honourable court be pleased to give such other order or relief that it may deem fit to grant; and
g. That the costs of this application be provided for.
2. The application is premised on the grounds stated therein and also on the undated supporting affidavit of the applicant.
3. Vide the said affidavit, the applicant stated that on 10th January 2023, he filed a caveat against the subject property, which is part of the undistributed estate of the deceased herein. He deposed that the letter dated 10th July 2023 by the 3rd and 4th respondents'' advocate intends to rescind the sale agreement entered into between himself and the appointed administrators. The 1st administrator is now deceased.
4. He further stated that he purchased the land from the administrators in 2012 via a sale agreement dated 30th January 2012 at a purchase price of Kes.5,000,000/-, out of which he paid Kes.850,000/-. The efforts to complete the sale culminated in a decision to activate Land Control Board proceedings in Ndia; however, their advocate informed them that the details captured in the grant of representation were incorrect and that the grant needed to be rectified first. The administrators filed an application for rectification dated 19th April 2012, which was never prosecuted. His efforts to complete the process were unfruitful due to the family''s feud over the estate.
5. He averred that he was never informed of the death of the 1st administrator and that on 10th July 2023, unidentified people invaded the suit property and dumped building materials on it without his consent, forcing him to seek legal redress. On the said date, he also received a letter from the advocates of the 3rd and 4th respondents, purporting to rescind the 2012 sale agreement. The matter is still pending before the court, awaiting the appointment of new administrators and confirmation of the grant, and thus, the 3rd and 4th respondents have no authority or power to terminate the said sale agreement.
6. He stated that he is seeking protection of his rights by the court as an innocent purchaser and urged the court to allow the application.
7. The respondent responded to the application through a Preliminary Objection dated 29th August 2023, stating that the application herein is hopelessly misconceived, frivolous, totally devoid of merit, and mala fides for reasons that this honourable court has no jurisdiction to hear and determine the application as filed.
8. The application was canvassed by way of written submissions.
9. The applicant, through his advocates, MKN & Company Advocates, filed his written submissions dated 14th November 2023.
10. Counsel submitted that the facts of the application are that the administrators of the estate of the deceased herein sold the suit property by way of a sale agreement dated 30th January 2012 to the applicant for Kes.5,000,000/-, wherein they granted the applicant possession of the suit property. However, the transfer was not finalized as the vendors never supplied the applicant with the completion documents as agreed. The respondents have attempted to take possession of the suit property by force, on the basis that the initial sale is revoked. It was submitted that the applicant has a justiciable and sustainable interest in the suit property and the estate of the deceased.
11. On the issue of jurisdiction counsel relied on Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules and submitted that the question in this matter is whether the deceased is the proprietor of the suit property fact which has not been disputed as the title of the said property is in the name of the deceased and thus there was no need for the parties to move to the Environment and Land Court. The interest of the applicant in the estate of the deceased can only be determined through a protest, objection, or an intervention of whatever nature or character raised by any party who has a claim against the estate.
12. Counsel submitted that the respondents admitted to the sale and even offered the applicant a refund of the purchase price paid. The applicant''s interest has to be heard and determined before the grant of representation is confirmed and the distribution of the estate is done.
13. Counsel relied on several authorities and submitted that this court has jurisdiction to hear and determine the application and to answer the question whether the applicant has an interest in the estate of the deceased and the suit property. Counsel urged the court to give directions on the same.
14. Counsel further submitted that the preliminary objection is bad in law and incompetent as it invites the court to determine factual matters without interrogation of the evidence. It was submitted that a preliminary objection can only be raised where facts are not disputed, which is not the case in the matter herein, as the issues raised can only be determined upon taking evidence of the parties. Counsel urged the court to allow the application and give directions on the hearing of the issues raised by the applicant.
15. I have considered the application, the preliminary objection, and the submissions by the applicant, and the issues for determination are:-
a. Whether the preliminary objection has merit; and
b. Whether the orders sought should issue.
16. On whether the preliminary objection has merit, the same is based on the reason that this court has no jurisdiction to hear and determine this application on the basis that it seeks to look into the ownership of the suit property.
17. The Court of Appeal in MUKISA BISCUITS MANUFACTURING LTD-VS- WEST END DISTRIBUTORS (1969) EA 696 observed that:-
"…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, a plea of limitation, or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration."
In the same case, Sir Charles Newbold, P. stated:-
"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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop".
18. The objection in this case is in regard to jurisdiction. The respondents aver that the issues raised by the applicant concern the title to the land and that, for that reason, this Court has no jurisdiction. Is that the case?
19. Article 165(5) of the Constitution of Kenya, 2010 provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2). Article 162(2) provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and use and occupation of, and title to land.
20. The foregoing Constitutional provision is given effect by section 13 of the Environment and Land Court Act, which provides as follows:-
“(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land…”
21. The claim by the applicant is that he bought the land from the administrators. The main issue, in my view, is the use and occupation of land, not a claim for money from the estate. That being the case, I am not persuaded that this Court has jurisdiction to hear and determine the matter.
22. I am guided by the decision of the Court in Peter Mukhunya Maloba v Dennis Kusinyo [2020] eKLR, where it was held that:-
“The dispute that was before the trial court related to the sale of land, which is regulated by the Land Registration Act and the Land Act. Contracts relating to sale of land are about title, for the agreement concerns conveyance of the title in the land from the vendor to the purchaser. After sale, transfer should follow. All these processes are regulated and governed by the Land Act and the Land Registration Act, and any dispute arising from the same ought to be a matter for resolution by the Environment and Land Court, as envisaged by the Land Act and the Land Registration Act.”
23. The upshot of the foregoing is that this Court has no jurisdiction to hear and determine the matter as the dispute relates to the occupation, use, and title to land. In the circumstances, I uphold the preliminary objection and dismiss the notice of motion dated 8th August 2023.
24. Given the nature of the matter, I order that each party bears/their own costs.
25. It is so ordered.
Dated and signed this 9th day of April 2024. Delivered virtually through Microsoft TEAMS.
'