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In re Estate of Mark Gicho Mbua (Deceased) (Succession Cause E024 of 2023) [2025] KEHC 14358 (KLR) (28 March 2025) (Ruling)

In re Estate of Mark Gicho Mbua (Deceased) (Succession Cause E024 of 2023) [2025] KEHC 14358 (KLR) (28 March 2025) (Ruling)
Citation
In re Estate of Mark Gicho Mbua (Deceased) [2025] KEHC 14358 (KLR)
Media Neutral Citation
[2025] KEHC 14358 (KLR)
Court
High Court
Court station
High Court at Mombasa
Outcome
Dismissed
Case number
Succession Cause E024 of 2023
Attorneys
Mr Gathu, holding brief for Ms Muthee,
Judges
G Mutai
Judgment date
28 March 2025
Language
English
Type
Judgment
Original source file
Download DOCX (36.8 KB)
Collections
Date published
19 October 2025
Case action
Ruling
Court division
Family
Filing county
Mombasa
Order
i. The Application dated 28th October 2024 was dismissed in limine; ii. Each party to bear own costs.
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1.The Petitioner herein filed an Application dated 28th October 2024 seeking the following reliefs:-i.Spent;ii.Spent;iii.Spent;iv.Upon release of Kes.2,600,000/-, the total balance of the amount held in the Deceased Account be apportioned and/or released to all beneficiaries as per the Grant dated 23rd January 2024.
2.The Application is premised on the grounds that the Petitioner was the administrator of the estate of the deceased, and the amount of Kes. 2,600,000/- were the terminal benefits of the deceased on account of his employment with the 4th Respondent.
3.In the supporting affidavit of Agnes Wambui Peter, sworn on 28th October 2024, it was also deposed that the 2nd Respondent was the custodian of the benefits of the deceased and that it held the said benefits pending the termination of the succession, but that upon completion of succession proceedings, it declined to release the funds.
4.The Respondents filed a Notice of Preliminary Objection by which the jurisdiction of this court was denied on the basis that the Application offended Section 36(a) of the Retirement Benefits Act.
5.The Respondents submitted that the court had no jurisdiction in the first instance as the matter ought to have been lodged with the Retirement Benefits Tribunal and therefore available statutory remedies had not been exhausted. Reliance was placed, inter alia, on the case of Rehema Marende Omulisa v Mwanaidi Auma Hamisi [2021] KEHC 3570 (KLR).
6.It was the case of the Respondents that the retirement benefits did not form part of the estate of the deceased.
7.On the other hand, it was submitted for the Petitioner that the Retirement Benefits Act did not apply to life assurance under section 16 of the Act. Further, that life assurance was not part of the scheme established under the Act.
8.Reliance was placed on the locus classicus of Mukisa Biscuits to submit that the court had jurisdiction, as the objection did not raise a pure point of law.
9.The issue is whether the preliminary objection is merited.
10.The court has first to find whether the Preliminary Objection meets the test of what a preliminary objection is before venturing to determine its merit. The locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, made this pertinent observation as hereunder: -“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of a preliminary objection. The improper raising of points of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuses issues. This improper practice should stop."
11.The proper contents of a preliminary objection would be allegations that relate but are not limited to objections to the jurisdiction of the court. In the case of the Tanzanian Court of Appeal sitting in Dar Es Salaam, in Karata Ernest & Others v Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30, it was stated succinctly regarding the issue of preliminary objections that: -“At the outset, we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading,” obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear, pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law, that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.”
12.Based on the above disposition, a preliminary objection does not anticipate a demur that leads the court into an evaluation of the facts and evidence. There can be no inference on a matter of evidence without trying the information or the document that is thought to contain the evidence.
13.In this case, the contention is on filing the Petition in the wrong forum, or failure to exhaust available statutory remedies in dispute resolution mechanisms before approaching the court. The Respondents’ position is that in the first instance, the matter ought to have been lodged with the Retirement Benefits Tribunal and therefore available statutory remedies had not been exhausted before jumping the gun to file in this court.
14.The Petitioner, on the other hand, holds the view that the Retirement Benefits Act did not apply to life assurance under Section 16 of the Act. Further, that life assurance was not part of the scheme established under the Act.
15.Considering the case before me, I have no doubt that the issue raised by the Respondent in the preliminary objection amounts to a pure point of law that can dispose of this Application. In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR, Justice Kiarie Waweru Kiarie, summarized the preliminary objection as seen from two of the judges in Mukisa Biscuit Manufacturing Co. Ltd as follows: -“A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969)EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:“....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 of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”At page701 paragraph B-C Sir Charles Newbold, P. added the following:A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion....”
16.Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of preliminary objection in the case of Oraro v Mbaja [2005] eKLR:“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.
17.In my view, the crux of the Application before me is the retirement benefits of the deceased. Section 36 of the Retirement Benefits Act, 1997 states as follows: -“Notwithstanding anything to the contrary contained in any other written law, where a judgment or order against a member of a scheme is made, no execution or attachment or process of any nature shall be issued in respect of the contributions or funds of the member or his employer except in accordance with the scheme the scheme rules and such contribution shall not form part of the assets of the member or of his employer in the event of bankruptcy.”
18.Pensions and related benefits are also governed by the Retirement Benefits Act, Cap 197, Laws of Kenya, which states, at Section 36A, that-“Upon the death of a member of a scheme, the benefit payable from the scheme shall not form part of the estate of the member for the purpose of administration and shall be paid out by the trustees in accordance with the scheme rules.
19.Section 47 of the Act established an appeals tribunal for the purpose of handling appeals under the Act. In my view, this is where the Applicant ought to have gone first. Failure to do so meant the Petitioner approached this court without exhausting the remedies available under the Act. This court cannot exercise jurisdiction where none exists. The issue must be disposed of at the earliest opportunity because if a Court has no jurisdiction over the dispute before it, then it must down its tools (see Owners of Motor Vessel ‘Lillian SS’ v Caltex Oil (K) LTD 1989 KLR 1).
20.It is my view that a preliminary objection must be based on current law and be factual. The facts should not be disputed. The preliminary objection raised herein meets the test. The dispute ought to have been raised before the Tribunal and not in this Court.
21.The upshot of the foregoing is that I make the following Orders: -i.The Application dated 28th October 2024 is dismissed in limine; andii.Each party shall bear own costs.
DATED AND SIGNED AT MOMBASA, THE 28TH DAY OF MARCH 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of:-Ms Ombat, for the Applicant;Mr Gathu, holding brief for Ms Muthee, for the Respondents; andArthur - Court Assistant.
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