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Court of AppealPartially AllowedFirst Appeal from Environment and Land Court, Isiolo (Plot KXXX, Kambi Juu)· [2025] KECA 596 (KLR)

FHJ v EAR (Civil Appeal 108 of 2019) [2025] KECA 596 (KLR)

Court of Appeal of Kenya
21 March 2025
2,471 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled the Environment and Land Court cannot decide matrimonial property disputes; those belong to the High Court, which will now hear this couple's case.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nyeri against a judgment of the Environment and Land Court (ELC) in a dispute over ownership of an unregistered plot in Isiolo County between a husband and wife married in 2003 and separated since 2007. The respondent claimed she bought the suit property using an Equity Bank loan and Sacco funds, and the ELC declared her the owner and enjoined the appellant from interfering with her use and occupation, dismissing the appellant's counterclaim for restitution founded on an allegation that he bought the plot in 2005 and that the respondent fraudulently had it renumbered. On appeal, the appellant's principal ground was that the ELC lacked jurisdiction because the dispute was in substance a matrimonial property dispute reserved for the High Court, relying on AKK v PKW. The Court framed three issues, addressed jurisdiction first, and held that by parity of reasoning with AKK v PKW the ELC erred in assuming jurisdiction over the matrimonial property dispute. It rejected the respondent's argument that the jurisdictional question could not be raised for the first time on appeal, holding, following Kenya Ports Authority v Modern Holding, that jurisdiction may be raised at any stage. The Court allowed the appeal on the jurisdictional ground only, declined to determine ownership of the suit property, and transferred the suit to the High Court to be heard on merits as a matrimonial property dispute. It ordered each party to bear their own costs of the appeal.

Key legal issues

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01

Whether the ELC has jurisdiction to determine disputes over land forming part of matrimonial property

Holding

The ELC lacked jurisdiction over the suit, which was in substance a matrimonial property dispute reserved for the High Court

Reasoning

The Court recited the definition of matrimonial property under section 6 and the division regime under section 7 of the Matrimonial Property Act, and its own holding in AKK v PKW that the High Court has jurisdiction to declare rights in matrimonial property. Applying the same reasoning, it held the ELC erred in assuming jurisdiction. The Court relied on Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia on the fundamental nature of jurisdiction.

p. 5
02

Whether jurisdiction can be raised for the first time on appeal

Holding

Yes; jurisdiction is a fundamental matter that may be raised at any stage, even for the first time on appeal

Reasoning

The respondent argued that the jurisdictional issue was not raised before the ELC and could not be raised on appeal. The Court, citing its decision in Kenya Ports Authority v Modern Holding [EA] Limited, held that jurisdiction may be raised at any time, in any manner, even for the first time on appeal, and even suo motu by the court provided parties are heard.

p. 5
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Duty of the first appellate court

Holding

As a first appeal, the Court is obliged to re-appraise the evidence and draw its own inferences of fact

Reasoning

The Court invoked Rule 31(1) of the Court of Appeal Rules, 2022 and Gitobu Imanyara v Attorney General, affirming that an appeal from a trial court's original jurisdiction is by way of retrial, though due allowance is made for the appellate court not having seen or heard the witnesses.

p. 3

Legal principles established

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  • A question of jurisdiction may be raised at any stage of proceedings, including for the first time on appeal, even where it was not raised before the trial court
  • The ELC has jurisdiction over disputes relating to land, including land forming part of matrimonial property, under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, but by parity of reasoning with AKK v PKW, a suit grounded in matrimonial property falls outside its proper jurisdiction

Court orders

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  1. 1.The appeal is allowed on the ground that the ELC lacked jurisdiction over the matrimonial property dispute
  2. 2.The suit is transferred to the High Court from the ELC to be heard on merits as a matrimonial property dispute
  3. 3.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Court of Appeal Rules, 2022Rule 31(1)
  • Matrimonial Property ActSection 6
  • Matrimonial Property ActSection 7
  • Environment and Land Court Act, 2011Section 13
  • Christian Marriage and Divorce Act

Cases cited (6)

  • AKK vs PKW
    [2020] eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Owners of Motor Vessel "Lillian S" Vs Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • AKM vs NNN
    [2019] eKLR
  • Kenya Ports Authority vs Modern Holding [EA] Limited
    [2017] eKLR
On appeal from
Environment and Land Court
Jurisdiction invoked
First appeal under Rule 31(1) of the Court of Appeal Rules, 2022; jurisdiction of the ELC considered under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "FHJ v EAR (Civil Appeal 108 of 2019) [2025] KECA 596 (KLR)", Case Analysis (2025). First Appeal from Environment and Land Court, Isiolo (Plot KXXX, Kambi Juu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/596/eng@2025-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.