1.Before this Court for determination is the Notice of Preliminary Objection dated November 19, 2021 by which the Administrator/Respondent Beatrice Mgoi Mbela objected to various applications which had been filed by the Interested party/Applicant.
2.The Preliminary Objection was opposed by the Applicant Josephine Egwa Mbela who filed the Grounds of Opposition dated December 6, 2021.
3.The application was canvassed by way of written submission. The Administrator filed the written submissions dated 16th December 2021 whilst the Applicant relied upon her written submissions dated 7th March 2022.
4.This succession cause relates to the estate of Darius Msagha Mbela (herein ‘the Deceased’) who died intestate on October 6, 2007. The Deceased was survived by a widow Beatrice Migoi Mbela (the Administrator herein) and five children.
5.Following the demise of the Deceased Grant a letters of Administration Intestate was made to his widow on April 16, 2008. The said Grant was duly confirmed on March 8, 2010 and was later rectified on 31st January 2017.
6.Thereafter Eric William Mbela one of the children of the Deceased (and a beneficiary to the estate) passed away on 31st December 2010. The Interested Party/Applicant Josephine Egwa Mbela who was the widow of ‘Eric’ was appointed co-Administrator of the estate of the late Eric Mbela on July 22, 2015.
7.Vide an application dated August 10, 2016 the Applicant sought to be substituted as a beneficiary of the estate of the late Darius Msagha Mbela. The application was allowed on January 31, 2017.
8.The Applicant then proceeded to file three (3) applications in this Succession Cause, which applications are yet to be heard. The first is the application dated July 17, 2017 by which the applicant seeks that the Administrator render an account of the estate and in particular the properties vested to Josephine Egwa Mbela. The Applicants also seeks that the Administrator be compelled to render account for the proceeds of the sale of Title Number 4752/2 Diani, South Coast Mombasa.
9.By an Application dated July 31, 2017 the Applicant seeks the immediate release of Kshs 2,000,000 to be utilized in payment of school fees for her minor son. Finally, in an application dated December 5, 2017 the Application seeks orders compelling the Administrator to appear in person in court to render an account of the estate of the Deceased.
10.In response to the three applications the Administrator filed the Notice of Preliminary Objection dated November 19, 2021 alleging that this court had no jurisdiction to entertain the three applications filed by the Applicant.
11.The Preliminary Objection was premised upon the following grounds:-1.The Grant of letters of Administration of the Estate of the Darius Msagha Mbela (Deceased) was confirmed on 8th March 2010. Transmission of the estate properties to the beneficiaries is not a process under the Law of Succession Act, Cap 160, nor the Probate and Administration Rules. It is process which is provided for under sections 61 and 62 of the Land Registration Act, No. 3 of 2012 and sections 49 to 51 the Land Act, No. 6 of 2012.2.Sections 2 and 101 of the Land Registration Act, No. 3 of 2012 and sections 2 and 150 of the Land Act, No. 6 of 2012 provide that the court with jurisdiction with regard to the administration, operationalization, application and interpretation of the two statues is the Environment and Land Court established under the Environment and Land Court Act, 2011, which statue was enacted by Parliament in accordance with Article 162(3) of the Constitution of Kenya, 2010.3.By virtue of Article 162 (2) (b) of the Constitution of Kenya, 2010 and sections 4 and 13 of the Environment and Land Court Act, 2011, the Environment and Land Court has exclusive jurisdiction over all disputes relating to the environment and the use and occupation, and title to, land.4.The High Court has no jurisdiction to handle disputes relating to transmission of estate properties following the confirmation of the certificate of grant, which process is provided for under the Land Registration Act and the Land Act, which statues are subject to the exclusive jurisdiction of the Environment and Land Court. Article 165(5) of the Constitution, 2010 declares that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2) of the Constitution.5.For the above reasons this Honourable court lacks the requisite jurisdiction to hear and determine the Interested Part/Applicant’s application dated July 17, 2017, July 31, 2017 and 5th December 2017”.
12.As stated earlier the Notice of Preliminary Objection was opposed.
Analysis and Determination
13.I have carefully considered this Notice of Preliminary Objection the Grounds filed in opposition thereto as well as the written submissions filed by both parties. The definition of what constitutes a preliminary objection was set out in the celebrated case of Mukisa Biscuit Manufacturing Company Limited v West End Distributors Ltd  EA as follows:-
15.Therefore a Preliminary Objection must raise a pure point of law –one which if determined may dispose of the entire case. It is trite law that jurisdiction is everything and without it a court cannot move one step further. In Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd  eKLR. The Court Stated:-
16.The Administrator submits that this court has no jurisdiction to handle disputes relating to transmission of estate properties following the confirmation of the Grants. That once a Grant has been confirmed the Succession Cause is deemed concluded and any disputes relating to transmission of estate of properties is a process provided for under the Land Act and the Land Registration Act and falls under the exclusive jurisdiction of the Environment and Land Court.
18.The Administrator submits that once the confirmed Grant was issued this court became “functus officio”. They cite the case of Re Estate Of Andashe Munyeti (Deceased)  eKLR where the court held that the process of transmission of property in accordance with the certificate of confirmed Grant is not a process under The Law of Succession Act 160 Laws of Kenya. The court stated that –
19.On the basis of the above it is the position of the Administrator that the Probate court has no jurisdiction to hear and determine the applications filed by the Applicant.
20.In rejoinder the Applicant has cited the duties of an Administrator as set out in Section 83 of the Law of Succession Act. She submits that the Administrator is required by law to complete the process of distribution within six (6) months of the date of confirmation of Grant.
21.The Applicant further submits that an Administrator has a legal duty to render accounts to the beneficiaries of the Estate. She cites the case of Re Estate of David Kyulu Kaindi  eKLR in which the Court held that personal representatives are also trustees.
23.According to the Applicant the court cannot be said to be ‘functus officio’ when the Administrator has not rendered accounts as required by law. The Applicant places reliance on section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. She urges the court to dismiss this Preliminary Objection.
24.The Law of Succession Act authorizes and indeed requires an Administrator to execute transfer and transact the estate of the Deceased to the identified beneficiaries in accordance with the confirmed Grant.
25.Section 83 of the Law of Succession Act provides for the duties of Personal representatives. Section 83(f) provides that
26.Section 84 of the same Act provides that Personal representatives shall be deemed to be trustee’s for the beneficiaries of the estate. Any failure by an Administrator to comply with the provisions of sections 83 and 84 of the Law of Succession Act amounts to a breach of his/her fiduciary duties.
27.The Applicant has alleged that the Administrator has failed to comply with the Act by failing and/or refusing to give a statement account to the court and/or to the beneficiaries and by failing within six (6) months, to conclude the distribution of the estate. These in my view are matters which falls squarely under the jurisdiction of the Probate Court. The Administrator has not denied any of the allegations made by the Applicant instead, she has filed a Preliminary Objection seeking to have the very valid queries being raised by the Applicant struck out.
28.The Administrator has insisted that the matters being raised by the Applicant fall under the jurisdiction of the Environment and Land Court, as the same involve the question of transmission of the estate to the beneficiaries.
29.I have carefully perused the three applications filed by the Applicant. The applications do not cause raise issues regarding transmission of the estate alone. The applications raise issues concerning accountability by the Administrator, request for funds for education of a minor and accountability in respect of an estate property, which was allegedly sold. These issues do not fall under the exclusive jurisdiction of the ELC.
30.The duty of the Probate Court is to oversee and supervise the distribution of the estate to the genuine beneficiaries. In the Estate of Alice Mumbua Mutua (Deceased) eKLR Hon Justice Musyoka stated as follows:-
31.Where an Administrator has failed to comply with any of his/her obligations as set out by section 83, then it falls to the Probate Court to enquire into the matter. Where as in this case a beneficiary has expressed frustration about the failure to distribute the estate a full fourteen (14) years after the Grant was issued then the Probate Court must enquire into the issue and must call the Administrator to account.
32.The issues raised by the Applicant do not amount to a purely land disputes nor do they amount to dispute over ownership of land as is being suggested by the Administrator. The Applicant has alleged that the Administrator has failed in her duties as personal representatives. This is not an issue for the ELC court but falls squarely within the purview of the Probate Court.
34.Similarly Rule 73 of the Probate and Administration Rules provide that –
35.I find that the dispute herein falls squarely within the jurisdiction of this court. I find no merit in the Notice of Preliminary Objection dated 19th November 2021. The same is dismissed in it’s entirely. The Administrator will meet the costs for this Preliminary Objection.
DATED IN NAIROBI THIS 20TH DAY OF MAY 2022MAUREEN A. ODEROJUDGE