Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2016] KEELC 814 (KLR)

Philip Chepkwony v Benjamin Tarus& 4 others [2016] KEELC 814 (KLR)

Environment and Land Court
8 June 2016
AOAntony Ombwayo
1,266 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court can hear trespass claims over a deceased person's land, so defendants can't escape such suits by calling them succession disputes.

What this practically means

#

Executive summary

#
The plaintiff, Philip Chepkwony, a son and beneficiary of the estate of Malakwen Kimugu Tarus (deceased), held a limited grant of letters of administration ad litem issued by the Chief Magistrate's Court at Eldoret. He sued five defendants, alleging that the 1st to 3rd defendants had, without authority, leased out and/or sold part of the deceased's estate to the 4th and 5th defendants. He sought a permanent injunction restraining the defendants from entering, trespassing, occupying, transferring, encumbering or wasting the estate until proper representation and distribution, plus costs. The defendants filed a preliminary objection contending that the court lacked jurisdiction because the matter concerned probate and administration, vested exclusively in the High Court under section 47 of the Law of Succession Act, and that the plaintiff lacked locus standi. Counsel for the defendants argued that section 13 of the Environment and Land Court Act did not arise in succession matters; counsel for the plaintiff maintained the claim was founded on use and occupation of, and title to, land, and that the ad litem grant gave him capacity. The court held that the dispute related to use, occupation and title to land under Article 162(2)(b) of the Constitution and section 13 of the ELC Act, and was not a pure succession dispute, though intermeddling may be dealt with by the High Court under section 45 of the Law of Succession Act. On locus standi, the limited grant conferred capacity to sue for the estate. The preliminary objection was dismissed with costs.

Key legal issues

#
01

Jurisdiction of the ELC over claims touching on a deceased's estate land

Holding

The ELC has jurisdiction because the dispute relates to use, occupation and title to land and to trespass, matters within section 13 of the ELC Act; intermeddling issues may nonetheless be dealt with by the High Court under section 45 of the Law of Succession Act

Reasoning

The court analysed Article 162 of the Constitution establishing courts with the status of the High Court for environment and land disputes, and section 13 of the ELC Act conferring original jurisdiction over land use, title and related disputes. It concluded the present claim, being founded on occupation and trespass to land, falls within that jurisdiction, while pure succession matters remain with the High Court under section 47 of the Law of Succession Act.

p. 2
02

Locus standi of the plaintiff holding a limited grant ad litem

Holding

The limited grant of letters of administration ad litem confers capacity on the plaintiff to file suit on behalf of the estate

Reasoning

The court referred to section 54 of the Law of Succession Act permitting limited grants in the forms in the Fifth Schedule, noted the limited grant issued by the Chief Magistrate's Court at Eldoret on 7.4.2016, and held that the estate devolves and vests in the personal representative, giving the plaintiff capacity to sue on its behalf.

p. 2

Legal principles established

#
  • The Environment and Land Court has jurisdiction over disputes relating to use, occupation and title to land, including trespass to a deceased's estate, but not over purely succession and estate administration disputes
  • A holder of a limited grant of letters of administration ad litem has capacity to file suit on behalf of the estate of the deceased
  • Claims against persons allegedly intermeddling with a deceased's estate by occupying and using land are not succession disputes and may be determined by the Environment and Land Court

Court orders

#
  1. 1.The preliminary objection is dismissed with costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 162 (including 162(2)(b) and 162(3))
  • Law of Succession Act, Cap 160Section 47
  • Law of Succession Act, Cap 160Section 54
  • Law of Succession Act, Cap 160Section 45
  • Law of Succession Act, Cap 160Fifth Schedule
  • Environment and Land Court ActSection 13 (including 13(2)(a)-(e))
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Philip Chepkwony v Benjamin Tarus& 4 others [2016] KEELC 814 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/814/eng@2016-06-08

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