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ELCDismissedNot stated in judgment (Preliminary Objection dated 7th November 2014, filed 10th November 2014)· [2015] KEELC 576 (KLR)

Gabriel Waweru Ng’anga & another v Samuel Gitau Ng’ang’a & another [2015] KEELC 576 (KLR)

Environment and Land Court
6 March 2015
BOB.N. Olao
992 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled it can hear a land trust case even where the land is outside its county, and defendants must prove prior cases to strike out suits.

What this practically means

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Executive summary

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The plaintiffs sued the defendants claiming that three parcels of land - LOC 6/MUNGUINI/3, LOC 6/GIKARANGU/292 and LOC 6/GIKARANGU/1692 - are held in trust for the plaintiffs, having belonged to their late father Nganga Ngethe, and should be shared among the six houses of the family. The defendants admitted holding LOC 6/GIKARANGU/292 in trust (excluding Alice Wanjiru and Peris Wairimu), pleaded they hold the parcels under a High Court grant, denied fraud, and raised a Preliminary Objection arguing lack of geographical jurisdiction (the land is in Maragua Sub-county, Muranga County), functus officio, and res judicata by virtue of Public Trustee Administration Cause No. 385 of 1979 in the High Court at Nairobi. Olao J dismissed the objection. On jurisdiction, although the land lies in Muranga, there is no ELC there; the practice is to file in the court nearest the subject matter and trust disputes can only be handled by this Court, which enjoys the same status as the High Court, so lack of geographical jurisdiction over the land is no reason to down tools. On res judicata, no proceedings from the prior case were availed; the duty to prove res judicata under Section 7 of the Civil Procedure Act lay on the defendant, and in their absence the Court could not find the suit barred. The Preliminary Objection dated 7th November 2014 was dismissed with costs to the plaintiffs. An application dated 15th October 2014 was directed to be heard by written submissions to be filed by 13th April 2015.

Key legal issues

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01

Geographical jurisdiction of the Environment and Land Court

Holding

The objection fails; suits should be filed in the court nearest to the subject matter and, in any event, the ELC enjoys the same status as the High Court.

Reasoning

The land parcels are admittedly in Muranga County, but there is no Environment and Land Court at Muranga. Practice dictates filing in the nearest court to the subject matter, and nothing demonstrated that the Nyeri High Court is nearer. Because the dispute involves trust, only the ELC can handle it; lack of geographical jurisdiction over the land would not justify downing tools since the Court enjoys the same status as the High Court.

p. 2
02

Res judicata and functus officio

Holding

The pleas fail because the defendants did not avail the proceedings of Public Trustee Administration Cause No. 385 of 1979.

Reasoning

Section 7 of the Civil Procedure Act was invoked, but no proceedings from the High Court in Nairobi or any other court were placed before the Court to demonstrate that the matter had been litigated. In the absence of those proceedings, the Court could not determine res judicata and could only conclude that no such suit exists, or that any such suit did not relate to the issues of fraud or trust raised.

p. 2

Legal principles established

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  • The mere fact that land subject matter of a land dispute is not within the geographical jurisdiction of the Environment and Land Court is not a reason to down tools, as the Court enjoys the same status as the High Court.
  • The party pleading res judicata bears the duty of availing the proceedings of the prior case to enable the Court determine the plea.

Court orders

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  1. 1.The Preliminary Objection dated 7th November 2014 and filed on 10th November 2014 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes involving trust; the Court enjoys the same status as the High Court

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, "Gabriel Waweru Ng’anga & another v Samuel Gitau Ng’ang’a & another [2015] KEELC 576 (KLR)", Case Analysis (2015). Not stated in judgment (Preliminary Objection dated 7th November 2014, filed 10th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/576/eng@2015-03-06

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