1.This is the notice of preliminary objection dated February 14, 2023. The grounds are;
2.In response to the preliminary objection the plaintiff filed a replying affidavit, sworn on the March 22, 2023.
3.On the February 16, 2023, the court with the consent of parties directed that the preliminary objection be canvassed by way of written submissions.
5.Counsel further submitted that the plaintiff has concealed material facts. That she has not demonstrated how she acquired the subject property. Ngong/Ngong/33113. She has put forward the cases of;Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd 1969 EA 696;Nitin Properties Ltd v Singh Kalsi & another (1995)eKLR. She prays that the preliminary objection be upheld.
6.Counsel for the plaintiff on the other hand, submitted that the defendant’s claim that the subject property belongs to the Estate of Edgar Kasaine Sekento is a matter of fact which can be proved or disproved at the hearing.He has put forward the cases of Jemutai Tanui v Juliana Jebtepkeny v 5 others Eldoret ELC 44 of 2013.Eunice Gathoni Wang’ombe v Hellen Wacera (2016) eKLR. He prays that the preliminary objection be dismissed.
7.In Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Limited (1969) EA 696; the Court stated thus As per Sir Charles Newbold;P
9.In the instant suit, both the plaintiff and the defendant admit that the subject property in dispute; Ngong/Ngong/33113 forms part of the Estate of Edward Barnoti Ole Sekento (Deceased).
10.I agree with counsel for the defendants submissions that the judgement in Succession Cause No E068 of 2021 in Kajiado High Court did not extinguish the right of the defendant and her children from inheriting the share of her late husband Edgar Kasaine Sekento.
11.For the foregoing reasons, I find that this court lacks jurisdiction to deal with this matter. This is a dispute which can only be resolved in Succession proceedings.I am guided by the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) 1KLR where Nyarangi JA, stated thus;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 is without jurisdiction”.I find merit in this preliminary objection and it is upheld. The suit herein is hereby struck out. I make no orders as to costs.