'
1. The petitioners have filed a preliminary objection dated 17/7/2024 in limine on a point of law, to two objections:-
1) The objection dated 22/8/2019 filed by John Kithendu Lua for being time barred, and offensive to the mandatory provision of Section 67(1) of the Law of Succession Act and Rule 17(1) of the P & A Rules, 1980.
2) The notice of objection dated 23/11/2021 by Peter Maingi Naiti for being time barred and offending the same provisions of the Laws of Succession Act and the P&A Rules.
3) And that this court lacks jurisdiction to hear and determine the objections of Peter Maingi Naiti as it offends the Mandatory provision of Article 162 (2) and 165(5) (b) of the Constitution, & Section 13 of the Environment and Land Court Act.
2. Parties filed written submissions in argument of the preliminary objection.
3. For the petitioners the point is that equity does not aid the indolent.
That the objectors filed their objections after the statutory mandatory 30 days, that the matter having been gazetted on 5/7/2019, the objections ought to have been filed on or before 5/8/2019.
4. That for Peter Maingi Naiti his objection is a claim of ownership to plot no. 19 - a claim that ought to have been made before the ELC Court.
5. Riding on the authority of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd(1969) EA 696 the petitioners argue submit that they come on a pure point of law . They cite Section 67(1) of the Law of Succession Act which states;
Notice of application for grant
(1)No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired)
And Rule 17(1) of the P & A rules which states;
17. Objections, answers and cross-applications
(1) Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has been already applied for by another person may do so by lodging within the period specified in the notice of the application published under rule 7(4), or such longer period as the court may allow, either in the registry in which the pending application has been made or in the principal registry, an objection in Form 76 or in triplicate stating his full name and address for service, his relationship (if any) to the deceased and the grounds of his objection.
6. It is contended that upon the gazettement of the estate - objections were invited to be filed in 30 days - however the objectors did not comply- hence their objections were filed out of time and without leave.
7. That the notice was published on 5/7/2019 Gazette Vol CXX1 No. 86) and the letters of Administrations were issued on 17/2/2020.
8. Relying on RE Estate of Paul Gathito Kibaya (deceased) Succession Cause No. E2177/2021 [2023] KEHC 1946/KLR family) (26/6/2023) Ruling the petitioners submit that any objection to be filed out of time must be filed with leave of court and that neither of the objections complied with Section 67(1), 68(1) and the Law of Succession Act & Rule 17(1) of the P&A Rules.
9. The court was also referred to Re: Estate of Agnes Ogolas Akoth (deceased) [2016] eKLR on the proposition that procedural rules are set down to ensure order in the search for justice – and ignoring specific express provisions of the law would breed anarchy and that Article 159(2) (d) of the Constitution cannot be allowed to be the door to that anarchy.
10. Regarding the objection dated 23/11/2021 it is submitted that the claim by the objection that he owns plot no. 19 Kilome Market and it is not available for distribution - in the Estate of the late James Mala Lua is wrongly suited and ought to be before the ELC Court hence as per the Owners of the Motor Vessel “Lillian S” vs Caltex Oil(Kenya Ltd [1989] eKLR - this court has no jurisdiction to hear that claim as the primary duty of this court - as a Probate & Administration Court is to distribute the estate of the deceased – see Re Estate of G.K.K (deceased) [2017] eKLR.
11. That the objector ought to file his claim in the appropriate court.
12. Peter Maingi Naiti in his submissions contends that the plot NO. 19 Kilome is in his name and not available for distribution. That he has lived on that plot for the last 12 years and has constructed his house there. That the petitioners have not produced any document to show that the property belongs to the deceased. That he, the objector bought the plot from beneficiaries of the estate; That in any event his objection is not time barred as the grant has not been confirmed; That plot 19 Kilome has no title deed, and the objector is the one registered as the owner.
13. He relies on Estate of P N (deceased) [2017] eKLR - where the court citing Rule 41(3) of the P &A Rules held that when, during the hearing of a confirmation application of a dispute arises over the shares/the beneficiaries then the court ought to postpone the hearing in view of Section 71 of the Law of Succession Act.
14. The creditor also filed submissions and relying on Martha Akinyi Migwambo vs Susan Ongoro Ogenda [2022] eKLR - she submitted that a preliminary objection must be on a point of law – see (Mukisa Biscuit). She also cited IEBC Vs Jane Cheperenger & 2 others [2015] eKLR where the Supreme Court rendered itself on preliminary objection.
That the true preliminary objection serves 2 purposes of merit as a shield against profligate deployment of time and other resources for the originator and as a public cause - sparing the scarce judicial time that ought to be expended only on deserving cases of dispute settlement.
15. The creditor agreed with the petitioners that the objections were filed out of time; and that this court did not have jurisdiction to hear the objection about ownership of plot 19, Kilome.
16. I have carefully considered the preliminary objection, the objections and the submissions - and the real question is whether the preliminary objection is sustainable.
17. On the issue of time – it is not in dispute that the objections were filled past the time allowed – 30 days after the gazettement of the estate.
18. The 1st objector did not file submissions and it would appear that he conceded that he was time barred.
19. The 2nd objector seemed to think that an objection as the one he brought is sustainable for as long as the grant has not been confirmed.
20. His objection is headed “objection to the confirmation of grant under Rule 17 of the Law of Succession Rule” I believe he is referring to Rule 17 of the P&A Rules. 17(1) is about objecting to the making of a grant- not the confirmation of grant. Hence - if the objector intended that this to be an objection to the confirmation of the grant- then the objection is misconceived because at that time the issue of confirmation of grant had not arisen – and the only issue was the issue of grant to the petitioners.
21. In addition, the objection would not be sustainable for want of jurisdiction – he claims ownership of one of the properties of the deceased – that would be a dispute for settlement by the ELC Court.
Further, the objector submits that he bought the property from beneficiaries of the deceased - that is disturbing - as on the face of it, it sounds like intermeddling. However, that is an issue for determination on evidence - in the court that deals with land disputes.
22. Clearly therefore it is my considered view that indeed the 2 objections were filed out of the mandatory time limits, and without leave. In addition, the issue of ownership of the plot 19, Kilome is not for this court as this court does not have the requisite jurisdiction.
23. The Preliminary Objection has merit and is sustained. The two objections are struck out accordingly. Each party to bear its own costs.
Dated, signed and delivered on CTS this 14th November 2025
Mumbua T. Matheka
Judge
CA Chrispol
'
1. The petitioners have filed a preliminary objection dated 17/7/2024 in limine on a point of law, to two objections:-
1) The objection dated 22/8/2019 filed by John Kithendu Lua for being time barred, and offensive to the mandatory provision of Section 67(1) of the Law of Succession Act and Rule 17(1) of the P & A Rules, 1980.
2) The notice of objection dated 23/11/2021 by Peter Maingi Naiti for being time barred and offending the same provisions of the Laws of Succession Act and the P&A Rules.
3) And that this court lacks jurisdiction to hear and determine the objections of Peter Maingi Naiti as it offends the Mandatory provision of Article 162 (2) and 165(5) (b) of the Constitution, & Section 13 of the Environment and Land Court Act.
2. Parties filed written submissions in argument of the preliminary objection.
3. For the petitioners the point is that equity does not aid the indolent.
That the objectors filed their objections after the statutory mandatory 30 days, that the matter having been gazetted on 5/7/2019, the objections ought to have been filed on or before 5/8/2019.
4. That for Peter Maingi Naiti his objection is a claim of ownership to plot no. 19 - a claim that ought to have been made before the ELC Court.
5. Riding on the authority of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd(1969) EA 696 the petitioners argue submit that they come on a pure point of law . They cite Section 67(1) of the Law of Succession Act which states;
Notice of application for grant
(1)No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired)
And Rule 17(1) of the P & A rules which states;
17. Objections, answers and cross-applications
(1) Any person who has not applied for a grant to the estate of a deceased and wishes to object to the making of a grant which has been already applied for by another person may do so by lodging within the period specified in the notice of the application published under rule 7(4), or such longer period as the court may allow, either in the registry in which the pending application has been made or in the principal registry, an objection in Form 76 or in triplicate stating his full name and address for service, his relationship (if any) to the deceased and the grounds of his objection.
6. It is contended that upon the gazettement of the estate - objections were invited to be filed in 30 days - however the objectors did not comply- hence their objections were filed out of time and without leave.
7. That the notice was published on 5/7/2019 Gazette Vol CXX1 No. 86) and the letters of Administrations were issued on 17/2/2020.
8. Relying on RE Estate of Paul Gathito Kibaya (deceased) Succession Cause No. E2177/2021 [2023] KEHC 1946/KLR family) (26/6/2023) Ruling the petitioners submit that any objection to be filed out of time must be filed with leave of court and that neither of the objections complied with Section 67(1), 68(1) and the Law of Succession Act & Rule 17(1) of the P&A Rules.
9. The court was also referred to Re: Estate of Agnes Ogolas Akoth (deceased) [2016] eKLR on the proposition that procedural rules are set down to ensure order in the search for justice – and ignoring specific express provisions of the law would breed anarchy and that Article 159(2) (d) of the Constitution cannot be allowed to be the door to that anarchy.
10. Regarding the objection dated 23/11/2021 it is submitted that the claim by the objection that he owns plot no. 19 Kilome Market and it is not available for distribution - in the Estate of the late James Mala Lua is wrongly suited and ought to be before the ELC Court hence as per the Owners of the Motor Vessel “Lillian S” vs Caltex Oil(Kenya Ltd [1989] eKLR - this court has no jurisdiction to hear that claim as the primary duty of this court - as a Probate & Administration Court is to distribute the estate of the deceased – see Re Estate of G.K.K (deceased) [2017] eKLR.
11. That the objector ought to file his claim in the appropriate court.
12. Peter Maingi Naiti in his submissions contends that the plot NO. 19 Kilome is in his name and not available for distribution. That he has lived on that plot for the last 12 years and has constructed his house there. That the petitioners have not produced any document to show that the property belongs to the deceased. That he, the objector bought the plot from beneficiaries of the estate; That in any event his objection is not time barred as the grant has not been confirmed; That plot 19 Kilome has no title deed, and the objector is the one registered as the owner.
13. He relies on Estate of P N (deceased) [2017] eKLR - where the court citing Rule 41(3) of the P &A Rules held that when, during the hearing of a confirmation application of a dispute arises over the shares/the beneficiaries then the court ought to postpone the hearing in view of Section 71 of the Law of Succession Act.
14. The creditor also filed submissions and relying on Martha Akinyi Migwambo vs Susan Ongoro Ogenda [2022] eKLR - she submitted that a preliminary objection must be on a point of law – see (Mukisa Biscuit). She also cited IEBC Vs Jane Cheperenger & 2 others [2015] eKLR where the Supreme Court rendered itself on preliminary objection.
That the true preliminary objection serves 2 purposes of merit as a shield against profligate deployment of time and other resources for the originator and as a public cause - sparing the scarce judicial time that ought to be expended only on deserving cases of dispute settlement.
15. The creditor agreed with the petitioners that the objections were filed out of time; and that this court did not have jurisdiction to hear the objection about ownership of plot 19, Kilome.
16. I have carefully considered the preliminary objection, the objections and the submissions - and the real question is whether the preliminary objection is sustainable.
17. On the issue of time – it is not in dispute that the objections were filled past the time allowed – 30 days after the gazettement of the estate.
18. The 1st objector did not file submissions and it would appear that he conceded that he was time barred.
19. The 2nd objector seemed to think that an objection as the one he brought is sustainable for as long as the grant has not been confirmed.
20. His objection is headed “objection to the confirmation of grant under Rule 17 of the Law of Succession Rule” I believe he is referring to Rule 17 of the P&A Rules. 17(1) is about objecting to the making of a grant- not the confirmation of grant. Hence - if the objector intended that this to be an objection to the confirmation of the grant- then the objection is misconceived because at that time the issue of confirmation of grant had not arisen – and the only issue was the issue of grant to the petitioners.
21. In addition, the objection would not be sustainable for want of jurisdiction – he claims ownership of one of the properties of the deceased – that would be a dispute for settlement by the ELC Court.
Further, the objector submits that he bought the property from beneficiaries of the deceased - that is disturbing - as on the face of it, it sounds like intermeddling. However, that is an issue for determination on evidence - in the court that deals with land disputes.
22. Clearly therefore it is my considered view that indeed the 2 objections were filed out of the mandatory time limits, and without leave. In addition, the issue of ownership of the plot 19, Kilome is not for this court as this court does not have the requisite jurisdiction.
23. The Preliminary Objection has merit and is sustained. The two objections are struck out accordingly. Each party to bear its own costs.
Dated, signed and delivered on CTS this 14th November 2025
Mumbua T. Matheka
Judge
CA Chrispol
'