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ELCStruck OutELC Case at Eldoret (suit filed 25th May 2017; number not stated in judgment)· [2017] KEELC 503 (KLR)

Lilian Jerobon Kimutai & another v Aron Chirchir & 3 others [2017] KEELC 503 (KLR)

Environment and Land Court

1 November 2017

MOM.A. Odeny

1,325 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan land court struck out a property suit because the land belonged to a deceased person's estate, meaning the succession court—not the land court—must decide it.

What this practically means

Executive summary

This is a ruling on a preliminary objection dated 27th June 2017 raised by the 1st, 2nd and 3rd defendants (with the 4th defendant associating herself with it) in a suit before the Environment and Land Court at Eldoret. The defendants argued that the court lacked jurisdiction because the suit properties belonged to the late Kimutai Musa, whose estate was the subject of Eldoret Succession Cause No. 36/16, that the 2nd Plaintiff lacked locus standi to sue on behalf of the 1st Plaintiff without a power of attorney, and that the suit was an abuse of process. The plaintiffs contended the properties were registered in the name of Keiyo Housing Limited and that an authority donated by the 1st Plaintiff conferred locus. The court, however, found it not in dispute that the deceased purchased the suit properties and his estate was subject to the succession cause. It held that the proper forum for disputes over property in a deceased's name is the succession cause, applying section 13 of the Environment and Land Court Act and the Lillian S principle that a court without jurisdiction must down its tools. On locus standi, it held the suit was filed on 25th May 2017 without authority, and a letter of authority filed on 11th August 2017, after the preliminary objection was raised, could not cure the defect. Allowing the objection as a proper point of law per the Mukisa Biscuits threshold, the court struck out the suit with costs to the defendants on 1st November 2017.

Key legal issues

Jurisdiction of the ELC over property forming part of a deceased's estate

Holding

The ELC lacks jurisdiction where the suit property belongs to a deceased person whose estate is the subject of a pending succession cause; the proper forum is the succession court.

Reasoning

Both counsel admitted the property was purchased by the deceased Kimutai Musa and his estate is subject to Eldoret Succession Cause No. 36/16. The defendants were not described as administrators of the estate, so the suit was not properly framed against them. If the register reads the deceased's name, transmission issues must be canvassed in the succession cause upon production of a grant.

p. 3

Locus standi of the 2nd Plaintiff

Holding

The 2nd Plaintiff had no authority to institute the suit at the time of filing; a later letter of authority filed after the preliminary objection could not cure the defect.

Reasoning

The suit was filed on 25th May 2017 without authority; the supplementary affidavit annexing the authority was filed on 11th August 2017 only after the preliminary objection was raised. Authority to act on behalf of another in a case must be by power of attorney at the time of filing.

p. 2

Whether the objection qualified as a proper preliminary objection

Holding

The court held the objection met the Mukisa Biscuits threshold as a pure point of law.

Reasoning

Relying on the Mukisa Biscuits formulation, the court found the objections on jurisdiction and locus standi were points of law capable of disposing of the suit without trial.

p. 3

Legal principles established

A court without jurisdiction must not take any step in the proceedings
A suit filed without authority cannot be cured by filing the authority afterwards, after a preliminary objection has been raised

Court orders

1.The preliminary objection dated 27/6/17 by the 1st, 2nd and 3rd defendants is allowed
2.The suit is struck out
3.Costs of the suit awarded to the defendants

Authorities

Legislation

Environment and Land Court Actsection 13

Cases cited (2)

The Owners of Motor Vessel 'Lillian S' Vs Caltex Oil Kenya Limited
(1989) KLR 1
Mukisa Biscuits case

Jurisdiction invoked: Section 13 of the Environment and Land Court Act (court's mandate); jurisdiction challenged via preliminary objection

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Lilian Jerobon Kimutai & another v Aron Chirchir & 3 others [2017] KEELC 503 (KLR)", Case Analysis (2017). ELC Case at Eldoret (suit filed 25th May 2017; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/503/eng@2017-11-01

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