'
1.By a plaint dated 20th December, 2024 the plaintiffs instituted this suit seeking judgment against the defendants, jointly and severally, for:-
a)A declaration that registration of the 1st Defendant as proprietor of the parcel of land known as Irong/Iten/382 measuring 3.147 hectares or thereabout equivalent to 7.7764 acres or thereabout stands revoked as per the directions and/or ruling and/or order made by Hon. Lady Justice H.A Omondi now Court of Appeal Judge on 0.5.11.2020 in Eldoret High Court P & A Succession Cause No. 159 of 2013 revoking the grant issued to the 1st Defendant.
b)A declaration that registration of the 1st Defendant as Proprietor of parcel of land known as Irong/Iten/382 measuring 3.147 hectares or thereabout equivalent to 7.7764 acres or thereabout is fraudulent, unlawful, unprocedural, illegal, null and void;
c)An order for cancellation of the title deed for parcel of land known as Irong/Iten/382 measuring 3.147 hectares or thereabout equivalent to 7.7764 acres or thereabout as issued to the 1st Defendant and cancellation of all entries recorded in the green card as from entry number 4, 5 and 6 as entered on the 12th day of September 2008 by the 2nd defendant.
d)An order reverting and/or reinstating the name of Lodoviko Cheptoo Rotich alias Cheptoo Rotich as the rightful, legal, absolute and indefeasible owner of the suit land Irong/Iten/382 measuring approximately 3.147 Ha or thereabouts equivalent to 7.77640 acres or therabouts at the lands registry particularly the green card by the 2nd defendant and a new title deed and/or green card be issued for the purposes of taking out fresh petition as per the directions and/or ruling and/or order made on 05.11.2020 in Eldoret High Court P & A Succession Cause No.159 of 2013.
e)An order directing the 1st Defendant to surrender the original title deed for the suit land Irong/Iten/382 to the 2nd Defendant forthwith.
f)A permanent injunction restraining the 1st Defendant by himself, his agents, servants, employees, other beneficiaries and/or otherwise whosoever from transmitting, subdividing, transferring, auctioning, charging, dealing, interfering, advertising for sale, disposing of or in any other manner interfering with the suit property herein parcel o land known as Irong/Iten/382 measuring approximately 3. 147 Ha or thereabouts equivalent to 7.77640 acres or thereabouts.
g)An order of injunction, inhibition, caution or restriction that may be in place in respect of the parcel of land known as Irong/Iten/382 measuring approximately 3. 147 Ha or thereabouts equivalent to 7.77640 acres or thereabouts be discharged for full implementation of this court’s decree, order, and/or judgment and/or directions and/or ruling made on the 05.11. 2020 in Eldoret High Court P & A Succession Cause No. 159 of 2013 revoking the grant issued to the 1st Defendant.
h)A declaration that the late Lodoviko Cheptoo Rotich alias Cheptoo Rotich alias Lotobiko Cheptoo Rotich-deceased is the lawful proprietor of parcel of land known as Irong/Iten/382 measuring approximately 3. 147 Ha or thereabouts equivalent to 7.77640 acres or thereabouts.
i)Costs of the suit
j)Any other relief the honourable court may deem fit and just to grant.
2.As can be discerned from the averments/contentions in the plaint, the plaintiffs’ suit is premised on the grounds that land parcel number Irong/Iten/382 measuring 3.147 hectares or thereabout (hereinafter referred to as the suit property) belongs to the Estate of Lodoviko Cheptoo Rotich alias Cheptoo Rotich alias Lotobiko Cheptoo Rotich (hereinafter referred to as Lodoviko) whose Estate they represent; that the suit property was subject of a court case to wit Eldoret High Court Probate & Administration Succession Cause No. 159 of 2013 where the grant issued to Constantina Kabon Komen (hereinafter referred to as Constantina) whose estate the 1st defendant represents, was revoked and an order for filing of a fresh petition in respect of the Estate of Lodoviko given.
3.Contending that the effect of revocation of the grant given to Constantina was to revert the suit property to the Estate of Lodoviko, the plaintiffs complain that the 1st defendant fraudulently, unprocedurally, unlawfully, illegally and/or without any colour or land right, filed a Succession Cause in respect of the Estate of Constantina to wit Iten SPMC Succession Cause number E013 of 2022, in which he included the suit property as part of the estate of Constantina.
4.It is the plaintiffs’ further pleaded case that the grant issued to the 1st defendant in Iten SPMC Succession Cause No. E013 of 2022 was confirmed and the suit property distributed to the beneficiaries of the estate of Contantina to their exclusion (exclusion of the plaintiffs) who are beneficiaries of the Estate of Lodoviko.
5.Terming the actions of the 1st defendant which culminated in administration and distribution of the suit property as part of the Estate of Contantina fraudulent, the plaintiffs lament that attempts to amicably resolve the dispute regarding administration of the estate of Lodoviko were futile and the plaintiffs instituted the instant suit seeking the reliefs listed herein above.
6.On 24th March 2025 the 1st defendant filed a notice of preliminary objection dated 21st March, 2025 seeking to dismiss the plaintiffs’ suit and the application for interlocutory reliefs accompanying it on the grounds that:-
1.The suit and the application are fatally defective and cannot stand;
2.The intestate and testamentary succession to and administration of the estate of the deceased persons are governed by the Law of Succession Act which under Section 47 gives the High Court jurisdiction to deal with any matter arising under the Act and that the High Court in this regard has concurrent jurisdiction to hear and determine disputes of succession relating to land;
3.That the court has no jurisdiction to entertain succession issues;
4.That the matter violates the clear provisions of Article 162(2) as read with Article 165(5) of the Constitution, which confers and limits the jurisdiction of the High Court and by extension the Environment and Land Court to matters assigned to the respective courts as it seeks to have the Environment and Land Court exercise Supervisory jurisdiction over the High Court;
5.That the suit is fatally defective, incompetent, bad in law and should be struck out with costs to the 1st defendant.
7.Pursuant to directions given on 25th March, 2025 the preliminary objection was disposed of by way of written submissions.
8.In his submissions dated 10th May 2025, filed on 21st May 2025, the 1st defendant submits that from the face of the plaint and the application, it is clear that the issues arising from the suit touch on the property forming part of an Estate and that the documentation attached thereto, relate to succession matters before the High Court at Eldoret and the Senior Principal Magistrate’s court at Iten.
9.The 1st defendant makes reference to the case of Mukisa Biscuit Manufacturing Company Ltd v west end Distributors Ltd 1969 EA 696 where the law regarding what amounts to a preliminary objection was espoused and asserts that the issues raised in the suit relate to intestate and testamentary succession to, and administration of Estates of deceased persons governed by the Law of Succession Act and that Section 47 of the Act gives the High Court jurisdiction to determine such matters.
10.It is the 1st defendant’s case that pursuant to Section 71 of the Law of Succession Act before distribution of the Estate, the court must satisfy itself that the beneficiaries are the legitimate beneficiaries of the Estate and that require the court to hear evidence from concerned parties.
11.Pointing out that the plaintiffs are claiming an interest in the suit properties which are registered in the names of and form part of the Estate of Lodoviko and contending that plaintiffs’ claim over the suit properties are issues that should be handled before the Succession Court, the 1st defendant states that the parties to the instant suit have had a long standing dispute on who are the actual beneficiaries of the Estate, which issue is yet to be determined.
12.According to the 1st defendant, the issue of who are the rightful beneficiaries of the Estate hereto cannot be determined before this court (ELC) but before a Succession Court, in particular, the High Court.
13.The 1st defendant’s further contends that no evidence has been adduced to the effect that the Succession Court cannot determine this matter; that the plaintiffs are asking this court to supervise the Succession Court which court, according to him, has concurrent jurisdiction over the issues in dispute. In that regard, the 1st defendant has placed reliance on the case of Salome Wambui Njau (Suing as an Administratix of the Estate of Peter Kiguru Njuguna (Deceased) vs. Caroline wangui Kiguru (2013) e KLR.
14.The 1st defendant further submits that the instant suit violates the principle of sub judice set out in Section 6 of the Civil Procedure Rules. In this regard, the 1st defendant submits that the instant suit is sub judice Eldoret High Court Succession Cause No.159 of 2013.
15.Arising from the foregoing, the 1st defendant urges this court to strike out/dismiss the suit/application with costs to him.
16.The Plaintiffs filed lengthy submissions, dated 20th May 2025, in which they identify two issues for the court’s determination. These are;
i)Whether the preliminary objection is competent;
ii) Whether this court has jurisdiction to hear and determine the instant suit.
17.On whether the preliminary objection is competent, the plaintiffs submit that it is not, as the issues raised in it require evidence to prove hence not a pure preliminary objection.
18.As to whether this court has jurisdiction to hear and determine the dispute presented before it, the plaintiffs submit that the case involves cancellation of title to land on the ground that it was fraudulently acquired hence falls within the jurisdiction of this court.
19.Terming the contention by the 1st defendant that the High Court and ELC have concurrent jurisdiction to hear and determine issues touching on land belonging to the Estate of a deceased person a misapprehension of the law, the plaintiffs’ submits that under Rule 42(2) of the Probate and Administration Rules as read with Section 26 of the Land Registration Act, only the Environment and Land Court can deal with matters touching on fraud in registration of land belonging to an estate of a deceased person.
20.Concerning the contention by the 1st defendant that the instant suit is sub judice Eldoret High Court Succession Cause No. 159 of 2013, the plaintiffs points out that contention/claim is not one of the grounds taken up by the 1st defendant in support of the preliminary objection and that it has been introduced through submissions. That notwithstanding, the plaintiffs have inter alia submitted that evidence is required to prove that the said suit is still pending in court. According to the plaintiffs, that suit was concluded hence alleged pendency cannot be relied on in support of the 1st defendant’s preliminary objection.
Analysis and determination
21.It is noteworthy, that the 1st defendant did not file a statement of defence on which his preliminary objection can hinge. Be that as it may, it is clear from the court record and/or pleadings that the orders pursuant to which the suit property was registered in the name of Constantina, on 12th September 2000, were set aside/nullified vide the order of the High Court, H.A Omondi J (as she then was), thereby reverting the suit property to the Estate of Lodoviko. The 1st defendant filed a fresh petition in respect of the Estate of Constantina in which he included the suit property as part of the Estate of Constantina.
22.As a result of the impugned action of the 1st defendant of including the suit property as part of the Estate of Constantina leading to its administration contrary to the orders given by the High Court that a fresh petition in respect of the Estate of Lodoviko comprised in the suit property be filed, the suit property was administered as per the confirmed grant issued to the 1st defendant in Iten SPMC Succession Cause No. E013 of 2022 and distributed as indicated in the confirmed grant of that court.
23.Succession of the suit property as belonging to the Estate of Constantina was clearly a misrepresentation of facts to the Succession Court leading to issuance of the impugned grant.
24.The impugned action of the 1st defendant entitles the plaintiffs to move the Succession Court for revocation of the grant issued to the 1st defendant.
25.In paragraph 19 of the plaint, the plaintiffs aver that after realizing the anomalies, illegality, fraudulent and/or misrepresentation by the 1st defendant, have since filed summons for revocation and/or annulment of the grant issued to the 1st respondent in Iten SPMC Succession Cause Number E013 of 2022.
26.The court record shows that on 26th May, 2025 , Hon Karanja, PM annulled and/or revoked the grant of letters of administration of the estate of the late Constantina Kabon Komen-deceased made and/or issued to Kenneth Komen on 12th October, 2023 and confirmed on 29th August, 2024 on grounds of non-disclosure and lack of pecuniary jurisdiction. Besides annulling the grant, the succession court directed that summons for revocation dated 21st February, 2025 be filed in a court of competent jurisdiction.
27.Whilst the misrepresentation/irregularity in the process that led to administration of the suit property by the 1st defendant as part of the estate of Constantina entitles the plaintiffs to move to this court to challenge the title based on the alleged irregularity, illegality and/or fraud…….
28.In Santuzza Bilioti alia Mei Santuzza, deceased, v. Giancarlo Falasconi, 2014, eKLR the court stated/held:-
“…The succession court has powers to holder a title deed to revert to the names of the deceased person. This in effect amounts to cancellation of the title deed. Further, a succession court can order cancellation of title deed if a deceased’s property is being fraudulently taken away by non-beneficiaries such as where the property is being sold before a grant is confirmed.”
29.In Re Estate of Alice Mumbua Mutua (Deceased)(2017) eKLR, William Musyoka J. stated/held:-
“…The Law of Succession Act and the Rules made thereunder are designed in such a way that they confer jurisdiction to the Probate Court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest and finally distribution of the assets among the survivors and the persons beneficiary interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries and distribution of the assets.
Disputes of course do arise in the process. The provisions of the Law of succession Act and the Probate and Administration Rules are tailored for resolution of disputes between personal representatives of the deceased and the survivors, the beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries are so resolution outside the framework set out in the Law of Succession Act and the Probate and Administration Rules….”
30.Is the claim by the plaintiffs a claim by third parties and/or against third parties to warrant the dispute being heard and determined by the ELC Court as opposed to the Succession Court?
31.In addressing that issue, I have read and considered the averments and contentions contained in the plaintiffs’ pleadings/plaint. The averments/contentions contained in the plaintiffs’ plaint dated 20th December 2024, show that the dispute between the plaintiffs and the defendant concern the administration of the estate Lodoviko which estate the plaintiffs accuse the 1st defendant of having fraudulently administered to their possible detriment/prejudice as they risk being left out in distribution of the estate yet they are beneficiaries.
32.From the averments/contentions in the plaint, it is clear that the dispute between the plaintiffs and the defendants relate to the estate of Lodoviko comprised in the parcel of land known Irong/Iten/382.The claim is purely between persons who claim to be entitled to administer the estate and/or benefit from the estate. There is no claim to the estate by a third party or third parties, which claim would require to be determined separately by this court. That being the case, on the strength of the persuasive decision in the cases of Santuzza Bilioti alia Mei Santuzza, deceased, v. Giancarlo Falasconi, (supra) and Re Estate of Alice Mumbua Mutua (Deceased) (supra), I find and hold that the issues raised in the instant suit can be conclusively addressed by the succession court. That being my view of the matter, I decline to take up the matter, not for want of jurisdiction but because the issues raised are capable of being handled with finality by the succession court.
33.The upshot of the foregoing is that the 1st defendant has made up a case for striking out of the suit presented before this court, which I hereby do.
34.On costs, the circumstances giving rise to filing of this suit show that the 1st defendant is to blame as he caused the estate of Lodoviko be administered as part of the estate of Constantina Kabon Komen contrary to the orders issued by the High Court in Eldoret Succession Cause No. 159 of 2013. For that reason, despite having made a case for striking out the suit, I decline to award him the costs of the suit and order that parties bear their own costs.
35.Orders accordingly.
Dated, signed and delivered this 6th day of November, 2025.
Ruling delivered Virtually in the presence of:
Mr Isiji for the Plaintiff.
Ms Kimeli for the 1st Defendant.
No appearance for the 2nd & 3rd Defendants.
Christine: Court Assistant.
'
1.By a plaint dated 20th December, 2024 the plaintiffs instituted this suit seeking judgment against the defendants, jointly and severally, for:-
a)A declaration that registration of the 1st Defendant as proprietor of the parcel of land known as Irong/Iten/382 measuring 3.147 hectares or thereabout equivalent to 7.7764 acres or thereabout stands revoked as per the directions and/or ruling and/or order made by Hon. Lady Justice H.A Omondi now Court of Appeal Judge on 0.5.11.2020 in Eldoret High Court P & A Succession Cause No. 159 of 2013 revoking the grant issued to the 1st Defendant.
b)A declaration that registration of the 1st Defendant as Proprietor of parcel of land known as Irong/Iten/382 measuring 3.147 hectares or thereabout equivalent to 7.7764 acres or thereabout is fraudulent, unlawful, unprocedural, illegal, null and void;
c)An order for cancellation of the title deed for parcel of land known as Irong/Iten/382 measuring 3.147 hectares or thereabout equivalent to 7.7764 acres or thereabout as issued to the 1st Defendant and cancellation of all entries recorded in the green card as from entry number 4, 5 and 6 as entered on the 12th day of September 2008 by the 2nd defendant.
d)An order reverting and/or reinstating the name of Lodoviko Cheptoo Rotich alias Cheptoo Rotich as the rightful, legal, absolute and indefeasible owner of the suit land Irong/Iten/382 measuring approximately 3.147 Ha or thereabouts equivalent to 7.77640 acres or therabouts at the lands registry particularly the green card by the 2nd defendant and a new title deed and/or green card be issued for the purposes of taking out fresh petition as per the directions and/or ruling and/or order made on 05.11.2020 in Eldoret High Court P & A Succession Cause No.159 of 2013.
e)An order directing the 1st Defendant to surrender the original title deed for the suit land Irong/Iten/382 to the 2nd Defendant forthwith.
f)A permanent injunction restraining the 1st Defendant by himself, his agents, servants, employees, other beneficiaries and/or otherwise whosoever from transmitting, subdividing, transferring, auctioning, charging, dealing, interfering, advertising for sale, disposing of or in any other manner interfering with the suit property herein parcel o land known as Irong/Iten/382 measuring approximately 3. 147 Ha or thereabouts equivalent to 7.77640 acres or thereabouts.
g)An order of injunction, inhibition, caution or restriction that may be in place in respect of the parcel of land known as Irong/Iten/382 measuring approximately 3. 147 Ha or thereabouts equivalent to 7.77640 acres or thereabouts be discharged for full implementation of this court’s decree, order, and/or judgment and/or directions and/or ruling made on the 05.11. 2020 in Eldoret High Court P & A Succession Cause No. 159 of 2013 revoking the grant issued to the 1st Defendant.
h)A declaration that the late Lodoviko Cheptoo Rotich alias Cheptoo Rotich alias Lotobiko Cheptoo Rotich-deceased is the lawful proprietor of parcel of land known as Irong/Iten/382 measuring approximately 3. 147 Ha or thereabouts equivalent to 7.77640 acres or thereabouts.
i)Costs of the suit
j)Any other relief the honourable court may deem fit and just to grant.
2.As can be discerned from the averments/contentions in the plaint, the plaintiffs’ suit is premised on the grounds that land parcel number Irong/Iten/382 measuring 3.147 hectares or thereabout (hereinafter referred to as the suit property) belongs to the Estate of Lodoviko Cheptoo Rotich alias Cheptoo Rotich alias Lotobiko Cheptoo Rotich (hereinafter referred to as Lodoviko) whose Estate they represent; that the suit property was subject of a court case to wit Eldoret High Court Probate & Administration Succession Cause No. 159 of 2013 where the grant issued to Constantina Kabon Komen (hereinafter referred to as Constantina) whose estate the 1st defendant represents, was revoked and an order for filing of a fresh petition in respect of the Estate of Lodoviko given.
3.Contending that the effect of revocation of the grant given to Constantina was to revert the suit property to the Estate of Lodoviko, the plaintiffs complain that the 1st defendant fraudulently, unprocedurally, unlawfully, illegally and/or without any colour or land right, filed a Succession Cause in respect of the Estate of Constantina to wit Iten SPMC Succession Cause number E013 of 2022, in which he included the suit property as part of the estate of Constantina.
4.It is the plaintiffs’ further pleaded case that the grant issued to the 1st defendant in Iten SPMC Succession Cause No. E013 of 2022 was confirmed and the suit property distributed to the beneficiaries of the estate of Contantina to their exclusion (exclusion of the plaintiffs) who are beneficiaries of the Estate of Lodoviko.
5.Terming the actions of the 1st defendant which culminated in administration and distribution of the suit property as part of the Estate of Contantina fraudulent, the plaintiffs lament that attempts to amicably resolve the dispute regarding administration of the estate of Lodoviko were futile and the plaintiffs instituted the instant suit seeking the reliefs listed herein above.
6.On 24th March 2025 the 1st defendant filed a notice of preliminary objection dated 21st March, 2025 seeking to dismiss the plaintiffs’ suit and the application for interlocutory reliefs accompanying it on the grounds that:-
1.The suit and the application are fatally defective and cannot stand;
2.The intestate and testamentary succession to and administration of the estate of the deceased persons are governed by the Law of Succession Act which under Section 47 gives the High Court jurisdiction to deal with any matter arising under the Act and that the High Court in this regard has concurrent jurisdiction to hear and determine disputes of succession relating to land;
3.That the court has no jurisdiction to entertain succession issues;
4.That the matter violates the clear provisions of Article 162(2) as read with Article 165(5) of the Constitution, which confers and limits the jurisdiction of the High Court and by extension the Environment and Land Court to matters assigned to the respective courts as it seeks to have the Environment and Land Court exercise Supervisory jurisdiction over the High Court;
5.That the suit is fatally defective, incompetent, bad in law and should be struck out with costs to the 1st defendant.
7.Pursuant to directions given on 25th March, 2025 the preliminary objection was disposed of by way of written submissions.
8.In his submissions dated 10th May 2025, filed on 21st May 2025, the 1st defendant submits that from the face of the plaint and the application, it is clear that the issues arising from the suit touch on the property forming part of an Estate and that the documentation attached thereto, relate to succession matters before the High Court at Eldoret and the Senior Principal Magistrate’s court at Iten.
9.The 1st defendant makes reference to the case of Mukisa Biscuit Manufacturing Company Ltd v west end Distributors Ltd 1969 EA 696 where the law regarding what amounts to a preliminary objection was espoused and asserts that the issues raised in the suit relate to intestate and testamentary succession to, and administration of Estates of deceased persons governed by the Law of Succession Act and that Section 47 of the Act gives the High Court jurisdiction to determine such matters.
10.It is the 1st defendant’s case that pursuant to Section 71 of the Law of Succession Act before distribution of the Estate, the court must satisfy itself that the beneficiaries are the legitimate beneficiaries of the Estate and that require the court to hear evidence from concerned parties.
11.Pointing out that the plaintiffs are claiming an interest in the suit properties which are registered in the names of and form part of the Estate of Lodoviko and contending that plaintiffs’ claim over the suit properties are issues that should be handled before the Succession Court, the 1st defendant states that the parties to the instant suit have had a long standing dispute on who are the actual beneficiaries of the Estate, which issue is yet to be determined.
12.According to the 1st defendant, the issue of who are the rightful beneficiaries of the Estate hereto cannot be determined before this court (ELC) but before a Succession Court, in particular, the High Court.
13.The 1st defendant’s further contends that no evidence has been adduced to the effect that the Succession Court cannot determine this matter; that the plaintiffs are asking this court to supervise the Succession Court which court, according to him, has concurrent jurisdiction over the issues in dispute. In that regard, the 1st defendant has placed reliance on the case of Salome Wambui Njau (Suing as an Administratix of the Estate of Peter Kiguru Njuguna (Deceased) vs. Caroline wangui Kiguru (2013) e KLR.
14.The 1st defendant further submits that the instant suit violates the principle of sub judice set out in Section 6 of the Civil Procedure Rules. In this regard, the 1st defendant submits that the instant suit is sub judice Eldoret High Court Succession Cause No.159 of 2013.
15.Arising from the foregoing, the 1st defendant urges this court to strike out/dismiss the suit/application with costs to him.
16.The Plaintiffs filed lengthy submissions, dated 20th May 2025, in which they identify two issues for the court’s determination. These are;
i)Whether the preliminary objection is competent;
ii) Whether this court has jurisdiction to hear and determine the instant suit.
17.On whether the preliminary objection is competent, the plaintiffs submit that it is not, as the issues raised in it require evidence to prove hence not a pure preliminary objection.
18.As to whether this court has jurisdiction to hear and determine the dispute presented before it, the plaintiffs submit that the case involves cancellation of title to land on the ground that it was fraudulently acquired hence falls within the jurisdiction of this court.
19.Terming the contention by the 1st defendant that the High Court and ELC have concurrent jurisdiction to hear and determine issues touching on land belonging to the Estate of a deceased person a misapprehension of the law, the plaintiffs’ submits that under Rule 42(2) of the Probate and Administration Rules as read with Section 26 of the Land Registration Act, only the Environment and Land Court can deal with matters touching on fraud in registration of land belonging to an estate of a deceased person.
20.Concerning the contention by the 1st defendant that the instant suit is sub judice Eldoret High Court Succession Cause No. 159 of 2013, the plaintiffs points out that contention/claim is not one of the grounds taken up by the 1st defendant in support of the preliminary objection and that it has been introduced through submissions. That notwithstanding, the plaintiffs have inter alia submitted that evidence is required to prove that the said suit is still pending in court. According to the plaintiffs, that suit was concluded hence alleged pendency cannot be relied on in support of the 1st defendant’s preliminary objection.
Analysis and determination
21.It is noteworthy, that the 1st defendant did not file a statement of defence on which his preliminary objection can hinge. Be that as it may, it is clear from the court record and/or pleadings that the orders pursuant to which the suit property was registered in the name of Constantina, on 12th September 2000, were set aside/nullified vide the order of the High Court, H.A Omondi J (as she then was), thereby reverting the suit property to the Estate of Lodoviko. The 1st defendant filed a fresh petition in respect of the Estate of Constantina in which he included the suit property as part of the Estate of Constantina.
22.As a result of the impugned action of the 1st defendant of including the suit property as part of the Estate of Constantina leading to its administration contrary to the orders given by the High Court that a fresh petition in respect of the Estate of Lodoviko comprised in the suit property be filed, the suit property was administered as per the confirmed grant issued to the 1st defendant in Iten SPMC Succession Cause No. E013 of 2022 and distributed as indicated in the confirmed grant of that court.
23.Succession of the suit property as belonging to the Estate of Constantina was clearly a misrepresentation of facts to the Succession Court leading to issuance of the impugned grant.
24.The impugned action of the 1st defendant entitles the plaintiffs to move the Succession Court for revocation of the grant issued to the 1st defendant.
25.In paragraph 19 of the plaint, the plaintiffs aver that after realizing the anomalies, illegality, fraudulent and/or misrepresentation by the 1st defendant, have since filed summons for revocation and/or annulment of the grant issued to the 1st respondent in Iten SPMC Succession Cause Number E013 of 2022.
26.The court record shows that on 26th May, 2025 , Hon Karanja, PM annulled and/or revoked the grant of letters of administration of the estate of the late Constantina Kabon Komen-deceased made and/or issued to Kenneth Komen on 12th October, 2023 and confirmed on 29th August, 2024 on grounds of non-disclosure and lack of pecuniary jurisdiction. Besides annulling the grant, the succession court directed that summons for revocation dated 21st February, 2025 be filed in a court of competent jurisdiction.
27.Whilst the misrepresentation/irregularity in the process that led to administration of the suit property by the 1st defendant as part of the estate of Constantina entitles the plaintiffs to move to this court to challenge the title based on the alleged irregularity, illegality and/or fraud…….
28.In Santuzza Bilioti alia Mei Santuzza, deceased, v. Giancarlo Falasconi, 2014, eKLR the court stated/held:-
“…The succession court has powers to holder a title deed to revert to the names of the deceased person. This in effect amounts to cancellation of the title deed. Further, a succession court can order cancellation of title deed if a deceased’s property is being fraudulently taken away by non-beneficiaries such as where the property is being sold before a grant is confirmed.”
29.In Re Estate of Alice Mumbua Mutua (Deceased)(2017) eKLR, William Musyoka J. stated/held:-
“…The Law of Succession Act and the Rules made thereunder are designed in such a way that they confer jurisdiction to the Probate Court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest and finally distribution of the assets among the survivors and the persons beneficiary interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries and distribution of the assets.
Disputes of course do arise in the process. The provisions of the Law of succession Act and the Probate and Administration Rules are tailored for resolution of disputes between personal representatives of the deceased and the survivors, the beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries are so resolution outside the framework set out in the Law of Succession Act and the Probate and Administration Rules….”
30.Is the claim by the plaintiffs a claim by third parties and/or against third parties to warrant the dispute being heard and determined by the ELC Court as opposed to the Succession Court?
31.In addressing that issue, I have read and considered the averments and contentions contained in the plaintiffs’ pleadings/plaint. The averments/contentions contained in the plaintiffs’ plaint dated 20th December 2024, show that the dispute between the plaintiffs and the defendant concern the administration of the estate Lodoviko which estate the plaintiffs accuse the 1st defendant of having fraudulently administered to their possible detriment/prejudice as they risk being left out in distribution of the estate yet they are beneficiaries.
32.From the averments/contentions in the plaint, it is clear that the dispute between the plaintiffs and the defendants relate to the estate of Lodoviko comprised in the parcel of land known Irong/Iten/382.The claim is purely between persons who claim to be entitled to administer the estate and/or benefit from the estate. There is no claim to the estate by a third party or third parties, which claim would require to be determined separately by this court. That being the case, on the strength of the persuasive decision in the cases of Santuzza Bilioti alia Mei Santuzza, deceased, v. Giancarlo Falasconi, (supra) and Re Estate of Alice Mumbua Mutua (Deceased) (supra), I find and hold that the issues raised in the instant suit can be conclusively addressed by the succession court. That being my view of the matter, I decline to take up the matter, not for want of jurisdiction but because the issues raised are capable of being handled with finality by the succession court.
33.The upshot of the foregoing is that the 1st defendant has made up a case for striking out of the suit presented before this court, which I hereby do.
34.On costs, the circumstances giving rise to filing of this suit show that the 1st defendant is to blame as he caused the estate of Lodoviko be administered as part of the estate of Constantina Kabon Komen contrary to the orders issued by the High Court in Eldoret Succession Cause No. 159 of 2013. For that reason, despite having made a case for striking out the suit, I decline to award him the costs of the suit and order that parties bear their own costs.
35.Orders accordingly.
Dated, signed and delivered this 6th day of November, 2025.
Ruling delivered Virtually in the presence of:
Mr Isiji for the Plaintiff.
Ms Kimeli for the 1st Defendant.
No appearance for the 2nd & 3rd Defendants.
Christine: Court Assistant.
'