1. Before this court for determination is summons dated 16 th March 2026 seeking revocation and annulment of the grant issued on 29 th October, 2019 and a Notice of Preliminary Objection dated 8 th July, 2026 filed by the Respondents. Since the preliminary objection, if successful, is capable of disposing off the entire suit, it must be determined first.
2. The preliminary objection is based on the following grounds;
a. The Applicant lacks the requisite locus standi to challenge the Grant issued in the estate of James Karani Gitao (deceased);
b. The Applicant is a stranger in these proceedings. He is improperly before the court and as such cannot properly agitate any cause before this court;
c. This Honorable Court lacks jurisdiction to stay proceedings pending before other courts of concurrent jurisdiction;
d. Insofar as the summons seeks the court to restrain dealings in land, the Court lacks jurisdiction to grant such relief. The court does not have jurisdiction to deal with land matters.
3. The preliminary objection was canvassed by way of written submissions. The law governing preliminary objections is now settled. In Mukisa BiscuitManufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , Law JA statedthat:
"…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 apreliminary point may dispose of the suit..."
4. These principles have been consistently reaffirmed by the superior courts, including in Oraro v Mbaja [2005] eKLR where Ojwang J. (as he then was) observed that a preliminaryobjection cannot be founded upon contested factual matters requiring evidentiary investigation.
5. The gravamen of the preliminary objection is that the Applicant lacks locus standi in the proceedings and that this honorable court lacks jurisdiction to stay the proceedings and determine matters related to land. Having carefully considered the pleadings, annextures and submissions of parties, I am satisfied that the issues raised by the Respondents are points of law which properly fall within the scope of a preliminary objection.
6. I will now determine each ground on its merit.
I. Whether the Applicant has locus standi
7. The Respondents argue that the Applicant has no locus standi because he is not a beneficiary, dependant, executor, administrator, creditor, purchaser or trustee of the estate, and because he has not stated in what capacity he approaches the court. They also argue that the Applicant is a stranger who joined himself to a closed succession cause without first seeking leave of the court, contrary to Order 1 Rule 10(2) of the Civil Procedure Rules.
8. The law on revocation and annulment of a grant is provided for under section 76 of the Laws of Succession Act which states as follows;
“76. Revocation or annulment of grant
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a)that the proceedings to obtain the grant were defective in substance;
(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d)…”
9. I agree with the Applicant that section 76 of the Law of Succession Act does not confine the right to seek revocation to beneficiaries, dependants or family members. The Court of Appeal in Musa Nyaribari Gekone & 2 Others v Peter Miyienda & Another (2015) eKLR , held that the phrase "any interested party" is wide enough to accommodate any person with a right or expectancy in the estate, and is not limited by Sections 39 and 66 of the Act.
10. Where a person seeks to found locus standi on an alleged debt owed by the deceased, the debt must have crystallized before the court can treat him as an interested party. This position was affirmed by the High Court In re Estate of Boniface Njeru Ngemi (Deceased) [2020] eKLR where the courts stated as follows;
“16… Although Section 66 of the law of succession recognizes creditors as interested parties in succession proceedings, such claim must have crystalized during the life time of the deceased…”
11. I note therefore that the Applicant’s standing has not been properly established on this ground.
12. However, in his supporting affidavit, the Applicant asserts a legal interest in L.R No. 294/2, said to have been left out of the inventory of estate assets, together with allegations that the grant was obtained through concealment of an earlier Will and forgery of a latter one. Taking these pleaded facts as true, as the court must do at this stage, they describe a person asserting a direct stake in specific estate property and in the integrity of the process by which the grant issued, not merely an unproven money claim. Whether the Applicant can, in fact, make out an interest in L.R No. 294/2, and whether the Will was truly forged, are matters that go to the strength of his case and will need to be tested through evidence at the hearing of the substantive summons. I find therefore, that the preliminary objection lacks merit on this ground.
II. Whether this court has jurisdiction to stay proceedings in HCFPA E948 of 2020 and HCCC E310 of 2024
13. On this ground, the Respondents have argued that this court lacks jurisdiction to stay proceedings pending before another competent court, that being HCFPA E948 of 2020 and HCCC No E310/2024 as sought by the Applicant in the summons for revocation. I note that the Appellant did not address this issue in his submissions, however, I will proceed to decide as below.
14. A court's jurisdiction flows only from the Constitution or from statute. As the Supreme Court held in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR , a court cannot expand its own jurisdiction beyond what the law confers on it, since jurisdiction goes to the root of a court's power to act at all.
15. I find that this court, sitting as a probate court in this succession cause, has not been given any supervisory or appellate power over HCFPA E948 of 2020 or HCCC E310 of 2024, both of which are separate suits pending before other judges of concurrent standing. Staying those proceedings from within this cause would amount to this court supervising matters properly before those courts. The preliminary objection therefore succeeds on this ground.
III. Whether this court has jurisdiction to restrain dealings in the named parcels of land
16. The Applicant further seeks orders restraining dealings in specific real properties, including L.R 294/2, L.R No 4148/94, and L.R No 209/363/2/8. The Respondents challenges this court’s jurisdiction, asserting that disputes and substantive remedies concerning land fall exclusively within the jurisdiction of the Environment and Land Court.
17. Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011 gives the Environment and Land Court exclusive jurisdiction over disputes concerning the ownership, use and occupation of land. In Kenya African National Traders and Farmers Union v Christine Mwikali & 8 Others, Civil Appeal No. 145 of 2018 , the Court of Appeal held that a party who wants a dispute over the ownership of land resolved must first file a substantive suit before the Environment and Land Court, and may only then present the resulting decree to the probate court.
18. This ground of the preliminary objection succeeds. Prayer (f) of the summons dated 16th March 2026 is struck out.
Disposition
19. For the reasons set out above, the preliminary objection dated 8th July 2026 succeeds in part. The court makes the following orders:
a. The ground of Preliminary Objection challenging the Applicant's locus standi is hereby dismissed.
b. Prayers (b) and (c) of the Applicant's Summons for Revocation and Annulment of Grant dated 16th March 2026 are hereby struck out for lack of jurisdiction.
c. The remaining prayers in the Applicant's Summons dated 16th March 2026, relating to the revocation and annulment of the Grant shall proceed to hearing on merits.
d. Given the divided outcome, each party shall bear its own costs of the preliminary objection.
It is so ordered.
Right of appeal 28 days.
Dated, signed and delivered via TEAMS at Nairobi on this 18th day of September, 2026.
………………….…………………….
HON. ROSELINE OGANYO, MRS.
JUDGE.
In the presence of: -
Court Assistant……E, Sana.
M/S Alando for the Applicant
Mr. Mugambi for the Petitioners
2. The preliminary objection is based on the following grounds;
a. The Applicant lacks the requisite locus standi to challenge the Grant issued in the estate of James Karani Gitao (deceased);
b. The Applicant is a stranger in these proceedings. He is improperly before the court and as such cannot properly agitate any cause before this court;
c. This Honorable Court lacks jurisdiction to stay proceedings pending before other courts of concurrent jurisdiction;
d. Insofar as the summons seeks the court to restrain dealings in land, the Court lacks jurisdiction to grant such relief. The court does not have jurisdiction to deal with land matters.
3. The preliminary objection was canvassed by way of written submissions. The law governing preliminary objections is now settled. In Mukisa BiscuitManufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , Law JA statedthat:
"…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 apreliminary point may dispose of the suit..."
4. These principles have been consistently reaffirmed by the superior courts, including in Oraro v Mbaja [2005] eKLR where Ojwang J. (as he then was) observed that a preliminaryobjection cannot be founded upon contested factual matters requiring evidentiary investigation.
5. The gravamen of the preliminary objection is that the Applicant lacks locus standi in the proceedings and that this honorable court lacks jurisdiction to stay the proceedings and determine matters related to land. Having carefully considered the pleadings, annextures and submissions of parties, I am satisfied that the issues raised by the Respondents are points of law which properly fall within the scope of a preliminary objection.
6. I will now determine each ground on its merit.
I. Whether the Applicant has locus standi
7. The Respondents argue that the Applicant has no locus standi because he is not a beneficiary, dependant, executor, administrator, creditor, purchaser or trustee of the estate, and because he has not stated in what capacity he approaches the court. They also argue that the Applicant is a stranger who joined himself to a closed succession cause without first seeking leave of the court, contrary to Order 1 Rule 10(2) of the Civil Procedure Rules.
8. The law on revocation and annulment of a grant is provided for under section 76 of the Laws of Succession Act which states as follows;
“76. Revocation or annulment of grant
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
(a)that the proceedings to obtain the grant were defective in substance;
(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
(d)…”
9. I agree with the Applicant that section 76 of the Law of Succession Act does not confine the right to seek revocation to beneficiaries, dependants or family members. The Court of Appeal in Musa Nyaribari Gekone & 2 Others v Peter Miyienda & Another (2015) eKLR , held that the phrase "any interested party" is wide enough to accommodate any person with a right or expectancy in the estate, and is not limited by Sections 39 and 66 of the Act.
10. Where a person seeks to found locus standi on an alleged debt owed by the deceased, the debt must have crystallized before the court can treat him as an interested party. This position was affirmed by the High Court In re Estate of Boniface Njeru Ngemi (Deceased) [2020] eKLR where the courts stated as follows;
“16… Although Section 66 of the law of succession recognizes creditors as interested parties in succession proceedings, such claim must have crystalized during the life time of the deceased…”
11. I note therefore that the Applicant’s standing has not been properly established on this ground.
12. However, in his supporting affidavit, the Applicant asserts a legal interest in L.R No. 294/2, said to have been left out of the inventory of estate assets, together with allegations that the grant was obtained through concealment of an earlier Will and forgery of a latter one. Taking these pleaded facts as true, as the court must do at this stage, they describe a person asserting a direct stake in specific estate property and in the integrity of the process by which the grant issued, not merely an unproven money claim. Whether the Applicant can, in fact, make out an interest in L.R No. 294/2, and whether the Will was truly forged, are matters that go to the strength of his case and will need to be tested through evidence at the hearing of the substantive summons. I find therefore, that the preliminary objection lacks merit on this ground.
II. Whether this court has jurisdiction to stay proceedings in HCFPA E948 of 2020 and HCCC E310 of 2024
13. On this ground, the Respondents have argued that this court lacks jurisdiction to stay proceedings pending before another competent court, that being HCFPA E948 of 2020 and HCCC No E310/2024 as sought by the Applicant in the summons for revocation. I note that the Appellant did not address this issue in his submissions, however, I will proceed to decide as below.
14. A court's jurisdiction flows only from the Constitution or from statute. As the Supreme Court held in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR , a court cannot expand its own jurisdiction beyond what the law confers on it, since jurisdiction goes to the root of a court's power to act at all.
15. I find that this court, sitting as a probate court in this succession cause, has not been given any supervisory or appellate power over HCFPA E948 of 2020 or HCCC E310 of 2024, both of which are separate suits pending before other judges of concurrent standing. Staying those proceedings from within this cause would amount to this court supervising matters properly before those courts. The preliminary objection therefore succeeds on this ground.
III. Whether this court has jurisdiction to restrain dealings in the named parcels of land
16. The Applicant further seeks orders restraining dealings in specific real properties, including L.R 294/2, L.R No 4148/94, and L.R No 209/363/2/8. The Respondents challenges this court’s jurisdiction, asserting that disputes and substantive remedies concerning land fall exclusively within the jurisdiction of the Environment and Land Court.
17. Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011 gives the Environment and Land Court exclusive jurisdiction over disputes concerning the ownership, use and occupation of land. In Kenya African National Traders and Farmers Union v Christine Mwikali & 8 Others, Civil Appeal No. 145 of 2018 , the Court of Appeal held that a party who wants a dispute over the ownership of land resolved must first file a substantive suit before the Environment and Land Court, and may only then present the resulting decree to the probate court.
18. This ground of the preliminary objection succeeds. Prayer (f) of the summons dated 16th March 2026 is struck out.
Disposition
19. For the reasons set out above, the preliminary objection dated 8th July 2026 succeeds in part. The court makes the following orders:
a. The ground of Preliminary Objection challenging the Applicant's locus standi is hereby dismissed.
b. Prayers (b) and (c) of the Applicant's Summons for Revocation and Annulment of Grant dated 16th March 2026 are hereby struck out for lack of jurisdiction.
c. The remaining prayers in the Applicant's Summons dated 16th March 2026, relating to the revocation and annulment of the Grant shall proceed to hearing on merits.
d. Given the divided outcome, each party shall bear its own costs of the preliminary objection.
It is so ordered.
Right of appeal 28 days.
Dated, signed and delivered via TEAMS at Nairobi on this 18th day of September, 2026.
………………….…………………….
HON. ROSELINE OGANYO, MRS.
JUDGE.
In the presence of: -
Court Assistant……E, Sana.
M/S Alando for the Applicant
Mr. Mugambi for the Petitioners