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ELCOtherPlaint dated 20th January 2015 (Estate of Chepkonga Maina - Succession Cause No. 265 of 1996 referenced)· [2015] KEELC 379 (KLR)

Faith Chemutai Maina v Julius Kiprono Maina [2015] KEELC 379 (KLR)

Environment and Land Court
5 May 2015
AOAntony Ombwayo
1,756 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court confirmed it can hear land disputes tied to a contested inheritance, but paused this case to let succession proceedings finish first.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 20th January 2015 claiming to be the duly registered owner of land parcel Soy/Kipsomba Block 1 (Tarakwa) 14, acquired as a gift through Succession Cause No. 265 of 1996, Estate of Chepkonga Maina, in which grant of probate was confirmed on 21st March 2002 to Willie K. Maina and Paul C. Limo. She alleged that in 2013 the defendant, without colour of right, encroached upon and took possession of the suit property, wrongfully cultivated it, threatened her with violence, and remained in occupation as a trespasser. She sought a declaration of entitlement to exclusive possession, a permanent injunction, eviction, general damages for trespass and costs. The defendant filed a preliminary objection on 12th February 2015 contending that the plaintiff's claims were already in dispute in the pending succession cause, that a status quo order had been issued there, and that the suit was therefore res subjudice and the court lacked jurisdiction. Mrs. Isaiah, for the defendant, argued that the plaintiff's title rested on a will still subject to undetermined objection proceedings in the succession cause; Mrs. Kimaru, for the plaintiff, contended that the issue was ownership and that the executors had been authorised by the court to allocate the property. The court held that, the suit being one relating to the use, occupation of and title to land, it had jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, and dismissed the preliminary objection. However, because objection proceedings seeking to annul or revoke the grant of probate were pending and would substantially affect the suit if successful, the court stayed the suit for 60 days to await their outcome. No costs order was made. Delivered at Eldoret on 5th May 2015 by Antony Ombwayo, Judge.

Key legal issues

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01

Jurisdiction of the Environment and Land Court in the face of pending succession objection proceedings

Holding

The court has jurisdiction over the claim concerning entitlement to use, occupation and title to land; pending succession proceedings do not oust that jurisdiction.

Reasoning

Article 162(2)(b) of the Constitution establishes courts with the status of the High Court to determine disputes relating to the environment and the use, occupation of and title to land. Section 13 of the Environment and Land Court Act confers original jurisdiction over such disputes, including title and tenure. Because the plaintiff's claim is based on alleged rights to use and occupy the suit land, the preliminary objection could not succeed.

p. 3
02

Whether proceedings should be stayed pending the objection proceedings in the succession cause

Holding

The court stayed the suit for 60 days because the objection proceedings, which seek to annul or revoke the grant of probate, would substantially affect the suit if successful.

Reasoning

The defendant commenced objection proceedings in Succession Cause No. 265 of 1996 which were pending inter partes hearing. The plaintiff's title emanates from a will which is the subject of those objection proceedings. If the grant of probate were annulled, the plaintiff's claimed title would be undermined. The court found it prudent and proper to stay its proceedings until the objection proceedings are heard and determined.

p. 3

Legal principles established

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  • The Environment and Land Court has jurisdiction over disputes relating to the use, occupation of, and title to land notwithstanding pending succession objection proceedings, but may stay its proceedings where the outcome of those proceedings would substantially affect the suit.

Court orders

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  1. 1.Proceedings in this suit are stayed for a period of 60 days to await the outcome of the objection proceedings in Succession Cause No. 265 of 1996

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(b)
  • Constitution of Kenya 2010Articles 42, 69 and 70
  • Environment and Land Court Act No. 19 of 2011Section 13
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and Section 13 of the Environment and Land Court Act No. 19 of 2011

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, "Faith Chemutai Maina v Julius Kiprono Maina [2015] KEELC 379 (KLR)", Case Analysis (2015). Plaint dated 20th January 2015 (Estate of Chepkonga Maina - Succession Cause No. 265 of 1996 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/379/eng@2015-05-05

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