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ELCOtherNot stated in judgment· [2017] KEELC 1012 (KLR)

Siboi Tipango & 5 others v Rose Mueni Maitha & 5 others [2017] KEELC 1012 (KLR)

Environment and Land Court
7 November 2017
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed land disputes belong exclusively in the Environment and Land Court, but refused extra injunctions because beneficiaries were already protected by a succession court order.

What this practically means

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Executive summary

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The court handled the 1st Defendant's preliminary objection dated 30th May 2017 and the Plaintiffs' Notice of Motion dated 31st August 2017 in a land suit concerning Ngong/Ngong/3768. The preliminary objection contended that the ELC lacked jurisdiction and that the Plaintiffs lacked locus standi. The Plaintiffs' motion, supported by the affidavit of the 4th Plaintiff, William Siasai Tipango, sought injunctive relief, disclosing that the suit property had been subdivided into Ngong/Ngong/5386-5392, cautions and restrictions removed without notice, and title deeds were being processed, creating apprehension of transfers to third parties. The 1st Defendant opposed, arguing the suit was res judicata, the Plaintiffs fraudulently obtained a grant that had been revoked, and the suit was an abuse of process designed to circumvent a valid decree. The court, applying the Mukisa Biscuit test and Section 13 of the Environment and Land Court Act, held that the ELC has exclusive mandatory jurisdiction over land disputes and dismissed the preliminary objection. On locus standi, it found the 2nd, 5th and 6th Plaintiffs, as beneficiaries, could proceed, while the 1st, 3rd and 4th Plaintiffs could not, their grant having been revoked on 14th October 2016. The court noted the property had not been distributed in the pending succession cause and that Justice Nyakundi had already granted a permanent injunction restraining dealings with the estate. It accordingly declined further orders as academic, disallowed the motion, and ordered costs in the cause.

Key legal issues

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01

Jurisdiction of the ELC over the suit

Holding

The preliminary objection on jurisdiction fails; the ELC has exclusive jurisdiction over land disputes

Reasoning

Section 13 of the Environment and Land Court Act, read with Article 162(2)(b) of the Constitution, confers exclusive and mandatory jurisdiction on the ELC over disputes relating to public, private and community land. The suit concerns title, subdivision and cautions over Ngong/Ngong/3768, squarely within that jurisdiction, so the 1st Defendant's objection could not succeed.

p. 2
02

Locus standi of the Plaintiffs

Holding

The 2nd, 5th and 6th Plaintiffs (beneficiaries) have locus standi; the 1st, 3rd and 4th Plaintiffs do not, their grant having been revoked

Reasoning

The grant of letters of administration issued to the 1st, 3rd and 4th Plaintiffs was revoked on 14th October 2016, so they cannot sue as administrators. However the 2nd, 5th and 6th Plaintiffs sued purely as beneficiaries of the estate and retain locus standi, so the suit is not a nullity. The pending succession cause impacts the case, warranting a stay in effect.

p. 3
03

Whether injunctive relief should be granted

Holding

The motion is disallowed as the Plaintiffs are already protected by injunctions in the succession cause

Reasoning

Justice Nyakundi had already granted a permanent injunction restraining the administrators from dealing with the estate properties pending further orders. The land has not been distributed since objection proceedings are pending. Further injunctive orders would therefore be academic and no prejudice would be suffered by any party.

p. 3

Legal principles established

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  • The Environment and Land Court has exclusive jurisdiction over all disputes relating to land and environment
  • A preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit

Court orders

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  1. 1.The Preliminary Objection dated 30th May 2017 is dismissed
  2. 2.The Notice of Motion dated 31st August 2017 is disallowed/not merited
  3. 3.Costs will be in the cause
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court 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, "Siboi Tipango & 5 others v Rose Mueni Maitha & 5 others [2017] KEELC 1012 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1012/eng@2017-11-07

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