In re Estate of Madan-Mohan Singh Varma (Deceased) [2022] KEHC 1136 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO 1254 OF 2017

IN THE MATTER OF THE CHILDREN ACT NO. 8 LAWS OF KENYA

AND

IN THE MATTER OF THE ESTATE OF MADAN-MOHAN SINGH VARMA (DECEASED)

IN THE MATTER OF SUMMONS FOR REVOCATION OF GRANT OF PROBATE WITH WRITTEN WILL

AND

ATHI STORES LIMITED.......................................................................................APPLICANT

VERSUS

RUBINDER SINGH CHOUDRIE..............................................................1ST RESPONDENT

KAMALJEET SINGH BHARI..................................................................2ND RESPONDENT

REENA VARMA........................................................................................3RD RESPONDENT

RULING

1.  Before this court for determination is the Notice of Preliminary Objection dated 12th October 2021 challenging the Application dated 23rd September 2021 filed by the Applicant ATHI RIVER STORES LIMITED.

2.   The Preliminary Objection was canvassed by way of written submissions. The Respondents filed the written submissions dated 22nd November 2021 whilst the Applicant relied upon its written submissions dated 28th October 2021.

3.   In the Application dated 23rd September 2021 the Applicant sought to reinstate the main application dated 23rd September 2021 which had been dismissed for non-attendance.

4.  Therefore the Notice of Preliminary Objection which basically attacked the Notice of Motion dated 23rd September 2021 was premature. The objection raised issues of ‘locus standi’ which are not relevant in an application seeking reinstatement of an application.

5.   It is trite that a Preliminary Objection must raise a pure point of law which is capable of determining the suit.

6.     In the celebrated case of MUKISA BISCUIT MANUFACTURING COMPANY VS WEST END DISTRIBUTORS LTD 1969 E.A it was held as follows:-

“…A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which isargued 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.” (Own emphasis).

7.     The Preliminary Objection filed herein raises issues which are disputed, none of which discloses a pure point of law e.g.,

- Whether the Applicant is a non-existent company

- Whether a non-family member can file a summons to revoke a Grant.

- Whether the Applicants Advocates had proper instructions.

8.   The real issue for determination in the application of 23rd September 2021 is whether or not the main application ought to be reinstated. The issue was not addressed in the Preliminary Objection.

9.   For the above reasons I find no merit in the Notice of Preliminary Objection dated 12th October 2021. The same is hereby dismissed and costs are awarded to the Applicant.

DATED IN NAIROBI THIS 4TH DAY OF MARCH 2022.

........................................

MAUREEN A. ODERO

JUDGE