FHJ v EAR (Civil Appeal 108 of 2019) [2025] KECA 596 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction to determine disputes over land forming part of matrimonial property
The ELC lacked jurisdiction over the suit, which was in substance a matrimonial property dispute reserved for the High Court
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.
Whether jurisdiction can be raised for the first time on appeal
Yes; jurisdiction is a fundamental matter that may be raised at any stage, even for the first time on appeal
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.
Duty of the first appellate court
As a first appeal, the Court is obliged to re-appraise the evidence and draw its own inferences of fact
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.
Legal principles established
#- 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
#- 1.The appeal is allowed on the ground that the ELC lacked jurisdiction over the matrimonial property dispute
- 2.The suit is transferred to the High Court from the ELC to be heard on merits as a matrimonial property dispute
- 3.Each party to bear their own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- MMN v AWM (Environment and Land Appeal E023 of 2023) [2026] KEELC 2746 (KLR)[2026] KEELC 2746 (KLR)11 May 2026followed
Cite this brief
#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.