1.The Respondent misrepresented facts which led to the rightful beneficiary of the estate being disinherited.
2.The said grant was obtained fraudulently, by the making of a false statement or by the concealment from the court of something material to the case
3.That the sole beneficiary benefited from one property in the estate being LR.NO. Aguthi/Gatitu/90 which was held by the deceased in trust for the applicants herein.
4.The proceedings to obtain the grant were defective in substance and the process did not address pertinent issues.
5.The administrator swindled the estate.
6.The costs of the application be met by the Respondent. Subsequently, a notice of preliminary objection dated 13th October, 2020 was filed in court on the following grounds:-(a)That the grant having been confirmed and the claim being premised on trust, the probate court has no jurisdiction to try and determine this matter(b)The summons for revocation of grant as filed is misplaced.
7.In the Celebrated Court of Appeal Case of “The owners of Motor vessel Lilian “S”-Vs – Caltex Oil Kenya Ltd 1989 KLR 1653*it was held:- “Jurisdiction is everything, without it a court has no power to make one more step. Where a court has no Jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of Law downs its tools in respect of the matter before it, the moment it holds the opinion that it has no Jurisdiction”
8.It is the respondents contention that the applicants in the summons for revocation in their supporting affidavit (Para 4) have deponed that the land parcel Aguthi/Gatitu/90 was held by the Deceased herein in trust.
9.Counsel for the Respondents submits that this court has no Jurisdiction to hear this claim which is based on trust.
10.Reliance is placed on the persuasive authority of Nakuru HC Succession Cause No.488/2001 in the matter of Estate of the late Jonathan Kinyua Waititu. Where it was held:-
11.Reliance is also placed in the persuasive case of Kerugoya H.C Succession Cause No.90/2013 Elijah Gachoki and another v Stanley Mugo Kariuki and another.
12.Where it was observed:
The applicants, case
13.It is submitted for the applicant that the Respondent obtained the grant fraudulently without disclosing the fact that land parcel No.Aguthi/Gatitu/90 was held by the deceased in trust for the applicants and as a result caused the transfer of the aforesaid land into his name as shown by the green card marked as exhibit “M-1”. Further that the suit property belonged to Wachira Gitiche who is the grandfather of the applicant and that it is this property which passed on to the deceased Elizabeth Wanja Wachira after the death of the grandfather Wachira Gitiche. Reliance is place on the case of Karisa Madumbo Ranai v Kavumbi Kitsao Chengo and 2 others which was cited in the case of the Estate of James Muiruri Kamau (deceased) 2018 eKLR where S. 26 of the Registered Lands Act Was followed and which provides that,
14.On the issue whether the grant had been confirmed and that the claim was based on trust and therefore the probate court had no Jurisdiction. It is contented that the same arose in the course of Succession proceedings, counsel relied in the case of Aurenzia Gikira Njeru v Kimani Kabengi and 2 others 2014 eKLR :-
15.On the issue of propriety of the preliminary objection itself Counsel relies on the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.  EA 696,where it was held:- “So far as I am aware, a preliminary objection, consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which objection, may dispose the suit.” It is counsel’s submission that different courts hold divergent views and as such this does not amount to a point of Law and therefore it amounts to a matter of discretion.
Analysis and determination
16.The summons for revocation of grant is dated 30th June 2020.At Paragraph 3, it is deponed thus:-
17.Peter Muriithi Wanjohi on behalf of the 4 objectors in his affidavit in support of the annulment/revocation of the grant at Paragraph 4 depones:- “That the Respondent upon acquisition of the grant used it to dispossess the applicants and other beneficiaries of Land Parcel No.Aguthi/Gatitu/90 which was being held by the deceased in trust.
18.The Main issue in this succession is whether there did exist a trust as known in law.
19.It is the objectors/Applicants (in the objection proceedings) who have pleaded the issue of trust. They are the ones who are required to prove that fact which they have themselves pleaded.
20.The preamble to the Law of Succession Act provides thus:- An Act of Parliament to amend, define and Consolidate the law relating to intestate and testamentary Succession and the administration of Estates of deceased person; and for purposes connected there with and incidental thereto.”
21.A clear reading of the above, outs issues of ownership of land and trusts from probate.
22.Article 162(2) of the Constitution establishes, courts with the status of the High Court to hear and determine disputes relating:-(a)…(b) The environment and the use and occupation of, and title to land.”
23.I have duly perused and considered the numerous authorities cited for and against this preliminary objection. They are of persuasive value but not binding on this court. It is noted that they are not in agreement as to whether a probate court has Jurisdiction on matters of declaration of trusts but on my part I am of the considered view that this court dealing with succession does not have Jurisdiction to deal with the issues relating to declaration of a trust. I ought and should lay down my tools for lack of Jurisdiction.
23.The Preliminary Objection has merit. The claim as regards the declaration of a trust ought to be filed as a separate suit before the Environment and Land Court.