REPUBLIC OF KENYAIN THE HIGH COURT OF KENYAAT NYERIHIGH COURT PROBATE AND ADMINISTRATION CAUSE NO. 307OF 2003IN THE MATTER OF THE ESTATE OF WACHIRA GITHIOMI (DECEASED)CHARITY WAIRIMU WANJOHI……………………………APPLICANTRULINGBefore this Court for determination is the Notice of Preliminary Objection dated 30th January 2025 filed by the Protestor/Applicant CHARITY WAIRIMU WANJOHI (as legal representative of the estate of GITHIAKA WAMBUGU KAMUTU)The Respondents opposed the Preliminary objection.BACKGROUND2. This succession cause relates to the estate of the late WACHIRA GITHIOMI (the Deceased) who died intestate in the year 1961.3. Vide a judgment delivered on 19th April 2018 Hon. Lady Justice Matheka allowed a summons for Revocation of Grant dated 29th September 2017. The court proceeded to revoke the grant which had been issued to the Respondent on 14th July 2005 as well as the certificate of Confirmed Grant issued on 7th October 2008. The court also directed that all consequential actions be set aside and Title No. LR MAHIGA/KIHOME/391 revert to its original states in the name of the Deceased.4. Finally in that same judgment the High Court directed that“The estate of Wachira Githiomi made up of his parcel of land LR Mahiga/Kihome/391 be shared equally among his children, i.e the applicant, the 2nd respondent their sister Murugi Wachira (through her son Daniel Maina Murugi) and Wamucii Wachira.”5. Following that judgment the Administrator JOHNSON KIRAGU WACHIRA filed a summons for confirmation of Grant dated 5th July 2021. One BENJAMIN MAINGI KARIMI filed an Affidavit of Protest dated 30th September 2024 claiming that he was a protected purchaser under Section 93 of the Law of Succession Act.6. In response the Applicant filed this Notice of PreliminaryObjection dated 30th January 2025 which was premised uponthe following grounds:-“1. The hearing of the summons for confirmation dated 5th July 2021 is resjudicata and this court being functus officio lacks jurisdiction to hear the same taking into account the judgment of this court delivered on 19th April 2018.2. The said summons herein is incompetent, vexatious and an abuse of court process and raises no reasonable cause of action.”7. The matter was disposed by way of written submissions. The Applicant filed the written submissions dated 16th February 2026 whilst the Respondents relied on their written submissions dated 5th January 2026.ANALYSIS AND DETERMINATION8. I have carefully considered the Preliminary Objection filed by the respondents as well as the written submissions filed by both parties.9. The definition of a Preliminary Objection was given in the case of MUKISA BISCUITS MANUFACTING COMPANY LTD -VS- WEST END DISTRIBUTORS LTD [1969] EA where the court statesas follows:-“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 the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submissions that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. “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.” [Own emphasis]10. In Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR, the Supreme Court of Kenya stated as follows:-“A preliminary Objection may only be raised on a “pure question of law”. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”11. Therefore in order for a preliminary objection to succeed the following tests mu Click Here to Read the rest of this document