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JudgmentIn the Estate of MABAVU ALI MWAMABAVU11 min read

In the Estate of MABAVU ALI MWAMABAVU

High Court at Kwale High Court · · Andayi W.F.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KWALE

PROBATE & ADMINISTRATION CASE NO. E008 OF 2025

IN THE MATTER OF THE ESTATE OF MWABAVU MABAVU (DECEASED)

GEORGE ADAMBA MUSIEGA and JUDITH LIVEHA

( Suing as the Personal Representatives of the Estate of Joash Adamba )....... CITORS

VERSUS

SAID MWABAVU MABAVU

ATHUMANI ALI MABAVU

MWANAEDA ALI MWABAVU.................................................................................CITEES

RULING

1. The Citors herein George Adamba Musiega and Judith Liveha are Personal Representatives of the Estate of Joash Adamba. They have filed the citation herein against the Citees Said Mwabavu Mabavu, Athumani Ali Mabavu and Mwanaeda Ali Mwabavu as the lawful children of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased). The citation is on the administration of the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) who at the time of his death was registered as owner property known as Kwale/Galu Kinondo/532 thus the same being alleged to be part of his estate. It is stated in the citation that the Citees are entitled to the share of the deceased’s estate as beneficiaries pursuant to the judgment and decree of the Kadhi’s court at Kwale in Succession Cause No. 157 of 2019.

2. The citation was served upon the Citees to enter appearance and accept or refuse letters of administration intestate to the estate of the said Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) being property No. Kwale/Galu Kinondo/532 and failure to which the said letters of administration be issued to one of the Citors herein George Adamba Musiega.

3. The citation is supported by the affidavit of George Musiega Adamba sworn on 2 nd September 2025 and supplementary affidavit sworn on 5 th February 2026. He deposes that he together with Judith Liveha, his co-Citor are personal representatives of the estate of Joash Adamba (Deceased). That the said Joash Adamba (Deceased) was the registered owner of the property known as Kwale/Galu Kinondo/532 through Objection No. 94 of 28 th August 1974 which he purchased from Ali Hemedi Mwakidhiwa to whom the land had been adjudicated and became the first entry on Green Card 1 dated 15 th November 1974. He has annexed to the supporting affidavit a copy of the title deed and green card.

4. According to the deponent the property has since been fraudulently transferred to Mwabavu Mabavu (Deceased) the father of the Citees herein in 1989 when in fact his death certificate shows that he died in 1983.

5. Succession to the estate of the late Mwabavu Mabavu was done in 2019 and one of his sons Adinani Ali Mwabavu also since deceased was registered as the owner of the subject property to hold it in trust for himself and his brothers, the Citees herein, pursuant to the Kadhi’s Court at Kwale Succession Cause no. 157 of 2019.

6. Since Adnani Ali Mwabavu is deceased, the Citors’ depose that the estate of the late Mwabavu Mabavu has reverted to its previous state in the name of Mwabavu Mabavu (Deceased). In that case the remaining beneficiaries of the estate, the Citees herein, have to take up the letters of administration to administer the estate intestate. However, the Citees have failed to proceed to take out the said letters of administration and thus the present Citation.

7. The Citors herein filed a suit before the Kwale ELC Suit No. E030 of 2023 initially against Adinani Ali Mwabavu and later amended the plaint to sue Said Ali Mwabavu seeking a declaration that the Citors are exclusively entitled to ownership of the subject property known as Kwale/Galu Kinondo/532.

8. The deponent deposed that the death of Adnani Ali Mwababu had been confirmed in the pleadings through the defence filed by Said Ali Mwabavu in Kwale ELC Case No. E030 of 2023 and further that the said Adnani Ali Mwabavu (Deceased) was the one handling the estate of their late father Mwabavu Mabavu (Deceased). As a result of his death, the deponent deposed, that the grant issued to Adnani Ali Mwabavu (Deceased) had since become useless and inoperative. The estate therefore remained unadministered yet the Citees herein as beneficiaries of the estate had not taken any steps to have the grant revoked or annulled or to apply for fresh letters of administration intestate and the subject property was at risk of wastage and loss.

9. The deponent George Adamba Musiega deposed that as a result of his beneficial interest and legal claim over the property No. Kwale/Galu Kinondo/532 he was entitled to be given the grant of representation in the event the Citees failed to respond to the citation or to renounce their right to apply for grant of representation over the subject property.

10. The Citees entered appearance to the Citation on 21 st October 2025 through a notice of appointment of advocates of the firm of Mbwiza & Company Advocates. Two other advocates, Mkan and Owade also appeared during a date for directions on 22 nd October 2025 and each indicated that he had been instructed to appear for the Citees. However, neither of these two advocates filed a notice of appointment of advocate.

11. The Citees did not file a statement in response to the Citation despite being given time on several occasions by this court to do so. They also failed to file submissions.

12. Instead, on 11 th February 2026 the Citees filed a notice of preliminary objection to the Citation. The preliminary objection is based on the following grounds:

a. This court sitting as a Probate Court lacks jurisdiction to determine contested questions of ownership, trust and beneficial interest in land, which issues fall within the exclusive jurisdiction of the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act.

b. The Citation herein is improperly used to litigate a land ownership dispute under the guise of succession proceedings contrary to the Law of Succession Act.

c. The Citors, though suing as personal representatives of the Estate of Joash Adamba, have no locus standi in the estate subject of this Citation and strangers thereto.

d. The estate in question has no liabilities owing to the Citors and no enforceable claim has been demonstrated to justify invocation of citation proceedings.

e. The Citation is frivolous, vexatious and amounts to an abuse of the process.

13. This court subsequently fixed a date for ruling to be on 10 th April 2026. However, a day before the scheduled date for ruling, the Citees filed an application by way of notice of motion premised on Rules 49, 59 and 73 of the Probate and Administration Rules, Order 51 Rule 1 of the Civil Procedure Rules and sections 1A,1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya seeking an order that the preliminary objection the Citees had filed dated 11 th February be disposed of first before the Citation, on priority basis.

14. The court granted the request and directed that parties file submissions on the preliminary objection. The Citors filed their submissions but the Citees did not.

15. I have considered the notice of preliminary objection and the submissions by learned counsel for the Citors. The four grounds of the preliminary objection are in actual fact only two; the jurisdiction of this court and the locus standi of the Citors. The issue for determination by this court is whether the notice of preliminary objection filed herein meets the threshold for a preliminary objection and if so, whether the same has merit and should be granted.

16. Learned counsel for the Citors submits that the preliminary objection is not on pure points of law and will require the court to look at factual issues before making a determination.

17. Further that the Citation does not require this court to determine the issue of ownership of the subject land since the same is before the Environment and Land Court at Kwale in ELC Case No. E030 of 2023. Learned counsel submits that the citation proceedings herein are to compel the Citees who are entitled to a grant of representation to the estate of Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) to take out letter of administration intestate to the deceased’s estate.

18. Learned counsel also submits that contrary to the averments by the Citees in the preliminary objection the Citors have locus standi to institute the Citation. That they are not creditors of the estate of Mwbavu Mabavu alias ali Mwabavu Mabavu (Deceased) but as personal representatives of the estate of Joash Adamba, they are have an identifiable interest in the subject parcel of land because they are aggrieved by the fraudulent transfer of the same to Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased).

19. Learned counsel has cited the cases of Oraro v Mbaja [2005] KEHC 3182 (KLR) on what constitutes a preliminary objection.

20. To begin with, the Citees have failed to file submissions and therefore to prosecute their preliminary objection and for that reason alone, the same should fail.

21. Secondly what constitutes a preliminary objection was stated by Law JA, in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 where he rendered himself thus :

“So far as I’m 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.”

22. Similarly, Sir Charles Newbold in the same case stated that:

“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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 points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop.”

23. In Oraro vs. Mbaja [2005] 1 KLR 141 Ojwang, J. (as he then was) expressed himself as follows on preliminary objections :

“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.

The first matter relates to increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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 facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion.

The improper raising of points by way of preliminary objection does nothing but /unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop… The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...”

24. The issue of the jurisdiction of this court is a point of law and so the same would be properly taken as a preliminary objection. On this ground the Citees aver that this court sitting as a Probate and Administration Court lacks jurisdiction to determine contested questions of ownership, trust and beneficial interest which issues fall within the jurisdiction of the Environment and Land Court.

25. It is true that this court would have no jurisdiction to determine an issue of ownership of the subject land. However, it is clear from the Citation herein that it is not the issue of ownership, trust nor beneficial interest of the subject land that is before this court. The issue before this court is who is entitled to take out representation to the estate of the lae Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased) as the registered owner of the subject land who would then answer to the question of the ownership of the land. The Citees herein are cited children and therefore the beneficiaries of the estate who are entitled to take out the letters of administration intestate.

26. The issue of ownership of the subject land is properly before the correct court in Kwale ELC Case No. Kwale/Galu Kinondo/532 and the Citees herein have not denied that they are aware of that case.

27. Therefore, the contention by the Citees that this court is being called upon to determine the issue of ownership, or trust has no basis and that ground of the preliminary objection fails.

28. The other ground of the preliminary objection is on the locus standi of the Citors to file the citation. Citees are urging that the Citors have no liabilities and no enforceable claim in the estate of the late Mwbavu Mabavu alias Ali Mwabavu Mabavu (Deceased). The Citors have clearly stated in the affidavit in support of the citation that their claim is not beneficial interest as creditors but rather is based on alleged fraudulent transfer of the land to the late Mwabavu Mabavu alias Ali Mwabavu Mabavu (Deceased). I believe that is the issue that the Environment and Land Court is being called upon to determine in Kwale ELC Case No. E030 of 2023. That is an issue based on facts that need to be argued before that court. That ground of the preliminary objection also fails.

29. Consequently, I find that the preliminary objection was not merited and the same is dismissed with costs to the Citors.

30. Orders accordingly.

31. Dated, signed and delivered on the virtual platform, Microsoft Teams this 28 th day of May 2026.

ANDAYI W.F

JUDGE

HC P&A E008/2025 Page 9/Citation