REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 114 OF 1999
IN THE MATTER OF THE ESTATE OF MAKHINO KOKONYAWELE (DECEASED)
RICHARD WAMALWA MAKHINO………………1ST ADMINISTRATOR
SUSAN NAKHANU MAKHINO…………………….2ND ADMINISTRATOR
VERSUS
BRANTINA NABANGALA MAKHINO……………………..…OBJECTOR
RULING
1. This ruling is on the Notice of Preliminary objection dated 8th November 2024, filed by the 1st and 2ndAdministrators/Respondents to the Objector/Applicant’s Notice of Motion application dated 4th October 2024, in which the Objector/Applicant is seeking orders, inter alia, revocation of seven parcels of land and their restoration in the name of the deceased herein. She alleges that the 1st and 2nd Administrators/Respondents herein intermeddled with the properties subject to this succession cause with the aim of undermining and/or defeating the substantive succession cause and that her summons for revocation of the confirmed grant dated 7th October 2024 is pending hearing before this Court.
2. The Preliminary issue raised is that the subject matter in question is about ownership, use, occupation and possession of land and in particular matters of such nature should be handled by the Environmental and Land Court as established under Article 162 (2) (b) of the Kenyan Constitution 2010, therefore this Court lacks jurisdiction to entertain the application dated 4th October 2024.
3. The Preliminary Objection was canvassed through written submissions. Both parties complied with the Court directive
Analysis and Determination
4. I have carefully and cautiously considered the application dated 4th October 2024, the Notice of Preliminary Objection dated 8TH October 2024, the suit and the Parties’ counsel rival submissions on the matter. It is my considered view that I must first deal with the issue of jurisdiction as raised in the preliminary objection whose determination could effectively determine the application and the entire suit herein.
5. On the issue of jurisdiction, the Supreme Court in The Matter of the Interim Independent Electoral Commission, S.C. Constitutional Application No. 2 of 2011; [2011] eKLR, and in Samuel Kamau Macharia and Another vs. Kenya Commercial Bank Limited and 2 Others [2012] eKLR, held that the assumption of jurisdiction by Courts in Kenya, is a subject regulated by the Constitution, Statute law, and judicial precedent. The Supreme Court stated: “A Court’s jurisdiction flows from either the Constitution or legislation or both. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity”.
6. In Motor Vessel “Lillian S” vs. Caltex Oil Kenya Limited (1989) KLR 1, this Court succinctly set out the principles and context for determination of jurisdiction. Nyarangi, JA stated, inter alia:
“Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
7. It is trite law that where Constitution or Statute confers jurisdiction upon a Court, tribunal, person, body or any authority, that jurisdiction must be exercised in accordance with the Constitution or the Statute conferring it. See Secretary, County Public Service Board & another vs. Hulbhai Gedi Abdille [2017] eKLR where this Court expressed itself as follows:
“Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum”
8. The issue as to this Court’s jurisdiction can therefore only be determined by first answering the question whether this Court can effectively determine the nature of the Objector/Applicant’s claim over ownership of the deceased’s property within the framework provided by the Law of Succession Act. The question of the legal effect of the sub-divisions and transfers to the respective beneficiaries entered into by the Administrators using the confirmed Grant date 7th October 2014, will need to be answered first, before this court as a Probate Court can make a determination at the Objector/Applicant’s interest in the deceased’s property.
9. This resolution of that question will in addition involve application of the law on title to land, and the Applicants’ application therefore goes beyond being merely a claim of succession to the deceased property. It is notable in this regard that disputes primarily concerning ownership, use, occupation and possession of land fall within the jurisdiction of the Environment and Land Court as provided by Article 162 (2)(b) of the Constitution, and Section 13(1) and (2) of the Environmental and Land Court Act
10. The 1st and 2nd Administrators/Respondents having sub-divided and transferred the seven parcels of the disputed lands from the deceased’s estate to the beneficiaries which is disputed by the Objector/Applicant herein and the confirmed Grant still stands unrevoked. It is in the interest of justice that these ownership disputes be resolved by a competent Court as this Court lacks the competent jurisdiction to determine matters touching on the ownership, use, occupation and possession of lands.
11. Accordingly, I decline to give the orders sought in the application dated 4th October 2024, for the foregoing reasons and direct that the same be litigated before a competent Court which is the Environment and Land Court.
12. In the end, I find that the that the 1st and 2nd Administrators/Respondents Preliminary Objection dated 8th November 2024 has merit and is allowed.
13. The proceedings herein are stayed.
14. Each party to bear it’s own costs.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 28th day of January 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
MR WEKESA FOR 1ST AND 2ND ADMINISTRATORS
MS NEKESA HOLDING BRIEF FOR KAPTEN.FOR OBJECTOR
PETER MACHONI - COURT ASSISTANT
RICHARD WAMALWA MAKHINO 1ST ADMINISTRATOR
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 114 OF 1999
IN THE MATTER OF THE ESTATE OF MAKHINO KOKONYAWELE (DECEASED)
RICHARD WAMALWA MAKHINO………………1ST ADMINISTRATOR
SUSAN NAKHANU MAKHINO…………………….2ND ADMINISTRATOR
VERSUS
BRANTINA NABANGALA MAKHINO……………………..…OBJECTOR
RULING
1. This ruling is on the Notice of Preliminary objection dated 8th November 2024, filed by the 1st and 2ndAdministrators/Respondents to the Objector/Applicant’s Notice of Motion application dated 4th October 2024, in which the Objector/Applicant is seeking orders, inter alia, revocation of seven parcels of land and their restoration in the name of the deceased herein. She alleges that the 1st and 2nd Administrators/Respondents herein intermeddled with the properties subject to this succession cause with the aim of undermining and/or defeating the substantive succession cause and that her summons for revocation of the confirmed grant dated 7th October 2024 is pending hearing before this Court.
2. The Preliminary issue raised is that the subject matter in question is about ownership, use, occupation and possession of land and in particular matters of such nature should be handled by the Environmental and Land Court as established under Article 162 (2) (b) of the Kenyan Constitution 2010, therefore this Court lacks jurisdiction to entertain the application dated 4th October 2024.
3. The Preliminary Objection was canvassed through written submissions. Both parties complied with the Court directive
Analysis and Determination
4. I have carefully and cautiously considered the application dated 4th October 2024, the Notice of Preliminary Objection dated 8TH October 2024, the suit and the Parties’ counsel rival submissions on the matter. It is my considered view that I must first deal with the issue of jurisdiction as raised in the preliminary objection whose determination could effectively determine the application and the entire suit herein.
5. On the issue of jurisdiction, the Supreme Court in The Matter of the Interim Independent Electoral Commission, S.C. Constitutional Application No. 2 of 2011; [2011] eKLR, and in Samuel Kamau Macharia and Another vs. Kenya Commercial Bank Limited and 2 Others [2012] eKLR, held that the assumption of jurisdiction by Courts in Kenya, is a subject regulated by the Constitution, Statute law, and judicial precedent. The Supreme Court stated: “A Court’s jurisdiction flows from either the Constitution or legislation or both. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity”.
6. In Motor Vessel “Lillian S” vs. Caltex Oil Kenya Limited (1989) KLR 1, this Court succinctly set out the principles and context for determination of jurisdiction. Nyarangi, JA stated, inter alia:
“Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
7. It is trite law that where Constitution or Statute confers jurisdiction upon a Court, tribunal, person, body or any authority, that jurisdiction must be exercised in accordance with the Constitution or the Statute conferring it. See Secretary, County Public Service Board & another vs. Hulbhai Gedi Abdille [2017] eKLR where this Court expressed itself as follows:
“Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum”
8. The issue as to this Court’s jurisdiction can therefore only be determined by first answering the question whether this Court can effectively determine the nature of the Objector/Applicant’s claim over ownership of the deceased’s property within the framework provided by the Law of Succession Act. The question of the legal effect of the sub-divisions and transfers to the respective beneficiaries entered into by the Administrators using the confirmed Grant date 7th October 2014, will need to be answered first, before this court as a Probate Court can make a determination at the Objector/Applicant’s interest in the deceased’s property.
9. This resolution of that question will in addition involve application of the law on title to land, and the Applicants’ application therefore goes beyond being merely a claim of succession to the deceased property. It is notable in this regard that disputes primarily concerning ownership, use, occupation and possession of land fall within the jurisdiction of the Environment and Land Court as provided by Article 162 (2)(b) of the Constitution, and Section 13(1) and (2) of the Environmental and Land Court Act
10. The 1st and 2nd Administrators/Respondents having sub-divided and transferred the seven parcels of the disputed lands from the deceased’s estate to the beneficiaries which is disputed by the Objector/Applicant herein and the confirmed Grant still stands unrevoked. It is in the interest of justice that these ownership disputes be resolved by a competent Court as this Court lacks the competent jurisdiction to determine matters touching on the ownership, use, occupation and possession of lands.
11. Accordingly, I decline to give the orders sought in the application dated 4th October 2024, for the foregoing reasons and direct that the same be litigated before a competent Court which is the Environment and Land Court.
12. In the end, I find that the that the 1st and 2nd Administrators/Respondents Preliminary Objection dated 8th November 2024 has merit and is allowed.
13. The proceedings herein are stayed.
14. Each party to bear it’s own costs.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 28th day of January 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
MR WEKESA FOR 1ST AND 2ND ADMINISTRATORS
MS NEKESA HOLDING BRIEF FOR KAPTEN.FOR OBJECTOR
PETER MACHONI - COURT ASSISTANT
RICHARD WAMALWA MAKHINO 1ST ADMINISTRATOR