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ELCOtherNotice of Motion dated 2nd July 2013 in a Plaint dated 2nd July 2013· [2014] KEELC 498 (KLR)

James Aggrey Hyapola Micheal & another v Rosemary Irene Wanga [2014] KEELC 498 (KLR)

Environment and Land Court
28 January 2014
PNP. Nyamweya
1,011 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Land disputes rooted in inheritance belong in the High Court's succession division, not the Environment and Land Court, which sent these parties there.

What this practically means

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Executive summary

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The Plaintiffs, the administrator and beneficiary of the estate of the late Isaiah Okoth Obiero, filed a Notice of Motion dated 2nd July 2013 seeking a mandatory injunction restoring them to possession of premises known as Nairobi/Block 62/111 at Kibera Fort Jesus, temporary injunctions restraining the Defendant from interfering with their access, possession and enjoyment of the property and from collecting rent from its tenants, and alternatively an order that rents collected be deposited with the court or a trustee. The Plaintiffs claimed that since the death of Florence Lilian Atieno Wanga, the deceased's widow and originally appointed administrator, the Defendant has occupied the suit premises and derived profits from it without any colour of right. The Defendant opposed the application, admitting the property is registered in the deceased's name but asserting she was given a house on the premises by the deceased couple in 2004 and is a beneficiary of the estate; she relied on a grant issued in Nairobi High Court Succession Cause No. 2336 of 2008. The court noted the Plaintiffs' plaint sought a declaration that the premises form part of the estate of Isaiah Okoth Obiero, that two separate grants of representation existed over the property, and that a succession suit was pending. Holding that the dispute was essentially a succession dispute governed by the Law of Succession Act, and invoking section 47 of that Act, section 6 of the Civil Procedure Act and Practice Direction No. 5 of 9th November 2012, the court declined to grant the orders sought, stayed the suit, and directed the parties to move the High Court where the succession cause is pending. Costs of the motion were to be in the cause.

Key legal issues

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Jurisdiction over disputes at the intersection of land and succession

Holding

The Environment and Land Court declined jurisdiction because the dispute is essentially a succession dispute; under section 47 of the Law of Succession Act the High Court has jurisdiction over matters arising under the Act, including disputes of succession relating to land

Reasoning

The court observed from the pleadings that the Plaintiffs seek a declaration that the suit premises form part of the estate of Isaiah Okoth Obiero, that two separate grants of representation exist over the same property, and that a succession suit is pending. Practice Direction No. 5 of 9th November 2012 directs that cases under the Law of Succession Act continue to be filed and heard by the High Court or competent Magistrates' Courts. The court therefore stayed the suit under section 6 of the Civil Procedure Act.

p. 2

Legal principles established

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  • Intestate and testamentary succession and the administration of estates of deceased persons are governed by the Law of Succession Act, under which the High Court has jurisdiction over any matter arising under the Act, including succession disputes relating to land
  • Where a dispute is essentially a succession dispute, the Environment and Land Court should stay the suit and direct the parties to the High Court in which the succession cause is pending

Court orders

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  1. 1.Declined to grant the orders sought in the Plaintiffs' Notice of Motion dated 2nd July 2013
  2. 2.Stayed the suit pursuant to section 6 of the Civil Procedure Act
  3. 3.Directed the Plaintiffs and Defendant to move the relevant High Court in which the succession cause concerning the suit premises is pending, to resolve and determine the dispute

Authorities

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Legislation

  • Law of Succession Actsection 47
  • Civil Procedure Actsection 6
  • Practice Directions on Proceedings relating to the Environment and the use and Occupation of, and Title to Land (Gazette Notice No. 16268)Practice Direction No. 5
Jurisdiction invoked
Section 47 of the Law of Succession Act; Practice Directions on Proceedings relating to the Environment and the use and Occupation of, and Title to Land (Gazette Notice No. 16268); section 6 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Aggrey Hyapola Micheal & another v Rosemary Irene Wanga [2014] KEELC 498 (KLR)", Case Analysis (2014). Notice of Motion dated 2nd July 2013 in a Plaint dated 2nd July 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/498/eng@2014-01-28

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