'1 The Adlitem administrator herein moved this court by way of the notice of preliminary objection dated 27.6.25 challenging the validity of a chamber summons application dated 9.6.25 filed by the firm of Aming’a Mang’erere and Company Advocates seeking revocation of grant. The applicant pleads that the said chamber summons application is incompetent and should be struck out for offending the law of succession procedural laws as no notice of entry was filed.
2 On 1st July, 2025, this court directed the parties to canvas the preliminary objection by way of written submission.
3 The applicant in in support of the preliminary objection submits that the interested parties’ pleadings are improperly on record for failure to file entry of appearance prior to filing the said chamber summons thus breaching the procedural probate and administration rules.
4 He argues that under rule 60 of the probate and administration rules, it is mandatory that any interested person who wishes to be heard upon or to oppose any application, and has not already appeared in the succession proceedings must file a notice of entry of appearance.
5 The applicant further submits that rule 60 dictates that the entry of appearance must be in the prescribed form 26 but one was filed herein, hence the interested parties/ Respondents lack legal capacity to participate in proceedings. Also that their failure to adhere to the mandatory provision of rule 60 renders their entire application fatally defective.
6 The interested parties filed grounds of opposition to the preliminary objection averring that the notice of objection does not raise any point of law; the objection is misconceived, frivolous and an abuse of the process of the court.
7 Further that the two grounds on which the purported objection is based lack legal particularity and the grounds are neither factual nor supported by any law or judicial precedent in Kenya.
8 The interested parties further submits that they are compliant with the probate and administration rule 59 which provides that save where otherwise provided in these rules every application to the court or to a registry shall be brought in the form of a petition, caveat or summons as may be appropriate.
9 The interested parties con concludes that rule 60 does not apply to them and that the same has been misconstrued by the petitioner since they have filed the application under rule 59 which at 59 (6) provides that save where it is otherwise provided in these rules there shall be filed with every application such affidavits (if any) setting out such facts and exhibiting such documents as the applicant may think necessary.
10 The law regarding preliminary objections is now settled. It is clear that a preliminary objection consists a pure point of law and that there should be no contest as to the facts s the same should be deemed as they appear on record.
11 I am guided by the dicta in the celebrated case of MUKISA BISCUITS MANUFACTURING CO LTD V WEST END DISTRIBUTORS [1969] EA 696 where it was held as follows:
“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.”
Similarly, Sir Charles Newbold in the same case held as follows:
“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 had 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. The improper practice should stop”
12 I have considered the preliminary objection and the parties respective submissions regarding the nature of the preliminary objection. The issue for determination is whether the preliminary objection by the applicant meets the legal threshold and whether the interested parties chamber summons should be struck out.
13 The objection raised by the applicant is that the interested parties have failed to comply with rule 60 of the probate and administration rules requiring that all interested persons who have not appeared in pending succession proceedings but wish to be heard on any application or oppose any application must enter appearance prior to being heard.
14 The interested parties on the other hand are not denying that they have not entered appearance. It is therefore not in contest and the court has confirmed upon perusal of the record that the interested parties advocate has neither entered appearance nor filed a notice of appointment of advocate.
15 The interested party’s argument is that they are not required to enter appearance since they have filed the summons for revocation and that by dint of rule 59, they are excluded from entering appearance.
16 I find that the preliminary objection meets the legal threshold of a preliminary objections.
17 I now proceed to consider whether the preliminary objection has merit.
18 The preliminary objection is grounded on Rule 60 which provides as follows;
Every interested person (whether or not he has served with notice thereof) who wishes to be heard upon or not to oppose any application, and has not already appeared in the proceedings, shall enter an appearance in form 26 in the registry in which the application is made giving his address for service, and may file such affidavits as he considers proper, to each of which the applicant may with leave of the court file an affidavit in reply.
19 The interested parties on the other hand rely on Rule 59(1) which provides that
“Save where otherwise provided in these Rules every application to the court or to a registry shall be brought in the form of a petition, caveat or summons as may be appropriate
And rule 59(6) which provide that
“Save where it is otherwise provided in these rules there shall be filed with every application such affidavits (if any) setting out such material facts and exhibiting such documents as the applicant may think necessary.”
20 I have considered the rival arguments by both parties herein .
21 I find that rule 59 of the probate and administration rules deals with the form or nature of proceedings to court, that is to say to be by way of a petition, caveat or summons as the case may be, except where otherwise provided in the rules.
22 In my view rule 59 by stating that except where otherwise provided for in the rules, is alive to the provisions of rule 41(3) and rule 63 which allows limited application of civil procedure rules as follows
Save as is in the Act or in these proceedings otherwise provided, and subject to any order of the court or registrar in any particular case for reasons to be recorded, the following provisions of the civil procedure rules, namely orders V, X, X, XI, XV, XVIII, XXV, XLIV, and XLIX (Cap. 21, Sub.Leg), together with the High Court (Practice and Procedure) Rules (Cap.8,Sub.Leg), shall apply so far as relevant to proceedings under these rules.
23 It is my finding that rule 60 on entry of appearance is mandatory and is a prerequisite to the filing of summons for revocation. There are no exceptions save for persons who are already appearing in proceedings pending.
24 In this case, the proceedings pending were the petition for letters of administration ad litem. The interested parties herein were not parties to and had not appeared in the petition for letters of administration ad litem prior to the filing of the summons for revocation. Consequently they were bound to enter appearance before filing the summons for revocation of grant.
25 I am persuaded by the holding of the court of appeal In the case of ONJULA ENTERPRISES LTD VS SUMARIA [1986] KRL 651, where the court held that:
“The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved
26 The supreme court in Patricia Cherotich Sawe v Independent Electoral & Boundaries Commision(IEBC) & 4 others [2015] eKLR Neutral citation: [2015] KESC 7 (KLR) while upholding a preliminary objection regarding a procedural mis-step held as follows;
1. The 1st ‘Notice of Appeal was mistakenly led in the High Court Registry and such notice therefore failed to meet one of the requirements for a proper Notice of Appeal in the terms of rule 31(1) of the Supreme Court Rules, 2012. The Notice of Appeal contemplated under rule 31(1) should have been led in the Court of Appeal Registry.
2. The appellant had failed to comply with rule 31(1) of the Supreme Court Rules and consequently had no locus to proceed and le a ‘petition of appeal’. Since the prescribed fourteen day period had lapsed; an application ought to have been made for extension of time to le a Notice of Appeal out of time.
3. The law prescribed the forum for ling Notices of Appeal and therefore, a Notice of Appeal needed to show on its face, the Registry where it was led. The delay in filing the first Notice of Appeal was occasioned by the mistake of ling it in the wrong Registry. Where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before [one] could proceed to do that which the law required. The appellant ought to have sought extension of time to le a proper Notice of Appeal; for by the time he was ling the 2nd Notice of Appeal, the fourteen-day period within which such a notice ought to have been led, had lapsed. Such an extension must have the leave of the Court.
4. Article 159(2) (d) of the Constitution was not a panacea for all procedural shortfalls. Not all procedural deficiencies could be remedied by article 159; and such was clearly the case, where the procedural step in question was a jurisdictional prerequisite.
27 I find the preliminary objection to be merited . I uphold the same . The chamber summons application dated 9.6.25 is thus struck out . Each party to bear his own costs.
TA ODERA
JUDGE
19.9.25
Delivered Virtually Via team platform in the presence of miss Nyaboke I hold brief for Mose Nyambega for petitioner Applicant. N/A for respondent & MR KIPCHIRCHIR CA
Nyaboke : Application date4d 30.6.25 is pending. We have filed a notice of withdrawal dated 19.9.25 .
Order : The application is marked as withdrawn with no orders as to costs .
T.A ODERA
JUDGE
19.9.25
'
2 On 1st July, 2025, this court directed the parties to canvas the preliminary objection by way of written submission.
3 The applicant in in support of the preliminary objection submits that the interested parties’ pleadings are improperly on record for failure to file entry of appearance prior to filing the said chamber summons thus breaching the procedural probate and administration rules.
4 He argues that under rule 60 of the probate and administration rules, it is mandatory that any interested person who wishes to be heard upon or to oppose any application, and has not already appeared in the succession proceedings must file a notice of entry of appearance.
5 The applicant further submits that rule 60 dictates that the entry of appearance must be in the prescribed form 26 but one was filed herein, hence the interested parties/ Respondents lack legal capacity to participate in proceedings. Also that their failure to adhere to the mandatory provision of rule 60 renders their entire application fatally defective.
6 The interested parties filed grounds of opposition to the preliminary objection averring that the notice of objection does not raise any point of law; the objection is misconceived, frivolous and an abuse of the process of the court.
7 Further that the two grounds on which the purported objection is based lack legal particularity and the grounds are neither factual nor supported by any law or judicial precedent in Kenya.
8 The interested parties further submits that they are compliant with the probate and administration rule 59 which provides that save where otherwise provided in these rules every application to the court or to a registry shall be brought in the form of a petition, caveat or summons as may be appropriate.
9 The interested parties con concludes that rule 60 does not apply to them and that the same has been misconstrued by the petitioner since they have filed the application under rule 59 which at 59 (6) provides that save where it is otherwise provided in these rules there shall be filed with every application such affidavits (if any) setting out such facts and exhibiting such documents as the applicant may think necessary.
10 The law regarding preliminary objections is now settled. It is clear that a preliminary objection consists a pure point of law and that there should be no contest as to the facts s the same should be deemed as they appear on record.
11 I am guided by the dicta in the celebrated case of MUKISA BISCUITS MANUFACTURING CO LTD V WEST END DISTRIBUTORS [1969] EA 696 where it was held as follows:
“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.”
Similarly, Sir Charles Newbold in the same case held as follows:
“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 had 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. The improper practice should stop”
12 I have considered the preliminary objection and the parties respective submissions regarding the nature of the preliminary objection. The issue for determination is whether the preliminary objection by the applicant meets the legal threshold and whether the interested parties chamber summons should be struck out.
13 The objection raised by the applicant is that the interested parties have failed to comply with rule 60 of the probate and administration rules requiring that all interested persons who have not appeared in pending succession proceedings but wish to be heard on any application or oppose any application must enter appearance prior to being heard.
14 The interested parties on the other hand are not denying that they have not entered appearance. It is therefore not in contest and the court has confirmed upon perusal of the record that the interested parties advocate has neither entered appearance nor filed a notice of appointment of advocate.
15 The interested party’s argument is that they are not required to enter appearance since they have filed the summons for revocation and that by dint of rule 59, they are excluded from entering appearance.
16 I find that the preliminary objection meets the legal threshold of a preliminary objections.
17 I now proceed to consider whether the preliminary objection has merit.
18 The preliminary objection is grounded on Rule 60 which provides as follows;
Every interested person (whether or not he has served with notice thereof) who wishes to be heard upon or not to oppose any application, and has not already appeared in the proceedings, shall enter an appearance in form 26 in the registry in which the application is made giving his address for service, and may file such affidavits as he considers proper, to each of which the applicant may with leave of the court file an affidavit in reply.
19 The interested parties on the other hand rely on Rule 59(1) which provides that
“Save where otherwise provided in these Rules every application to the court or to a registry shall be brought in the form of a petition, caveat or summons as may be appropriate
And rule 59(6) which provide that
“Save where it is otherwise provided in these rules there shall be filed with every application such affidavits (if any) setting out such material facts and exhibiting such documents as the applicant may think necessary.”
20 I have considered the rival arguments by both parties herein .
21 I find that rule 59 of the probate and administration rules deals with the form or nature of proceedings to court, that is to say to be by way of a petition, caveat or summons as the case may be, except where otherwise provided in the rules.
22 In my view rule 59 by stating that except where otherwise provided for in the rules, is alive to the provisions of rule 41(3) and rule 63 which allows limited application of civil procedure rules as follows
Save as is in the Act or in these proceedings otherwise provided, and subject to any order of the court or registrar in any particular case for reasons to be recorded, the following provisions of the civil procedure rules, namely orders V, X, X, XI, XV, XVIII, XXV, XLIV, and XLIX (Cap. 21, Sub.Leg), together with the High Court (Practice and Procedure) Rules (Cap.8,Sub.Leg), shall apply so far as relevant to proceedings under these rules.
23 It is my finding that rule 60 on entry of appearance is mandatory and is a prerequisite to the filing of summons for revocation. There are no exceptions save for persons who are already appearing in proceedings pending.
24 In this case, the proceedings pending were the petition for letters of administration ad litem. The interested parties herein were not parties to and had not appeared in the petition for letters of administration ad litem prior to the filing of the summons for revocation. Consequently they were bound to enter appearance before filing the summons for revocation of grant.
25 I am persuaded by the holding of the court of appeal In the case of ONJULA ENTERPRISES LTD VS SUMARIA [1986] KRL 651, where the court held that:
“The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved
26 The supreme court in Patricia Cherotich Sawe v Independent Electoral & Boundaries Commision(IEBC) & 4 others [2015] eKLR Neutral citation: [2015] KESC 7 (KLR) while upholding a preliminary objection regarding a procedural mis-step held as follows;
1. The 1st ‘Notice of Appeal was mistakenly led in the High Court Registry and such notice therefore failed to meet one of the requirements for a proper Notice of Appeal in the terms of rule 31(1) of the Supreme Court Rules, 2012. The Notice of Appeal contemplated under rule 31(1) should have been led in the Court of Appeal Registry.
2. The appellant had failed to comply with rule 31(1) of the Supreme Court Rules and consequently had no locus to proceed and le a ‘petition of appeal’. Since the prescribed fourteen day period had lapsed; an application ought to have been made for extension of time to le a Notice of Appeal out of time.
3. The law prescribed the forum for ling Notices of Appeal and therefore, a Notice of Appeal needed to show on its face, the Registry where it was led. The delay in filing the first Notice of Appeal was occasioned by the mistake of ling it in the wrong Registry. Where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before [one] could proceed to do that which the law required. The appellant ought to have sought extension of time to le a proper Notice of Appeal; for by the time he was ling the 2nd Notice of Appeal, the fourteen-day period within which such a notice ought to have been led, had lapsed. Such an extension must have the leave of the Court.
4. Article 159(2) (d) of the Constitution was not a panacea for all procedural shortfalls. Not all procedural deficiencies could be remedied by article 159; and such was clearly the case, where the procedural step in question was a jurisdictional prerequisite.
27 I find the preliminary objection to be merited . I uphold the same . The chamber summons application dated 9.6.25 is thus struck out . Each party to bear his own costs.
TA ODERA
JUDGE
19.9.25
Delivered Virtually Via team platform in the presence of miss Nyaboke I hold brief for Mose Nyambega for petitioner Applicant. N/A for respondent & MR KIPCHIRCHIR CA
Nyaboke : Application date4d 30.6.25 is pending. We have filed a notice of withdrawal dated 19.9.25 .
Order : The application is marked as withdrawn with no orders as to costs .
T.A ODERA
JUDGE
19.9.25
'