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ELCDismissedELC Case (Kerugoya) – suit concerning Kabare/Nyangati land parcels; Preliminary Objection filed 23rd August 2016· [2017] KEELC 2087 (KLR)

Nancy Wakathare Nguri & 2 others v Edith Wagatu Nguri & 2 others [2017] KEELC 2087 (KLR)

Environment and Land Court
16 June 2017
BOB.N. Olao
1,922 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's land court confirmed it can decide family land trust disputes even after a succession case has concluded.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection in a suit by five siblings (plaintiffs) against their mother (1st defendant, administratrix of their late father Peter Nguri Mbuthia's estate) and two other defendants. The plaintiffs claim that although the suit properties devolved to the 1st defendant upon confirmation of grant in Kerugoya Principal Magistrate's Succession Cause No. 3 of 2010, she was to hold them in trust for all her children, and that in breach of that trust she sub-divided and transferred the properties to the 2nd and 3rd defendants without the plaintiffs' consent. The defendants raised a preliminary objection on two grounds: that the cause of action relates to probate and administration, ousting the ELC's jurisdiction, and that the suit is res judicata given the confirmation of grant. Relying on Mukisa Biscuits, the court found both grounds to be pure points of law properly raised. On jurisdiction, the court held that the claim is founded on trust over land, squarely within Article 162(2)(b) of the Constitution and Section 13 of the ELC Act. On res judicata, applying the four prerequisites in Uhuru Highway Development, the court held that trust was not directly and substantially in issue in the succession cause; a Probate Court has no mandate to determine trusts, and Rule 41(3) of the Probate and Administration Rules contemplates such questions being determined in separate proceedings. Further, the alleged trust arose after confirmation of grant, evidenced by a family meeting of 11th December 2015. The preliminary objection was dismissed with each party bearing their own costs, the parties being family.

Key legal issues

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01

Jurisdiction of the ELC over trust claims notwithstanding probate proceedings

Holding

The Court has jurisdiction; Article 162(2)(b) and Section 13 of the ELC Act cover disputes relating to title to land including trusts

Reasoning

The plaintiffs' claim is founded on trust over land. Article 162(2)(b) establishes this Court to determine disputes relating to the environment and use, occupation of and title to land, and Section 13(2)(e) of the ELC Act extends to any other dispute relating to environment and land. A trust claim is therefore within the Court's mandate notwithstanding that the land passed through a succession cause.

p. 3
02

Res judicata vis-à-vis the confirmation of grant

Holding

The suit is not res judicata; trust was not directly and substantially in issue in the succession cause, and the alleged trust arose after confirmation of grant

Reasoning

Applying the four prerequisites in Uhuru Highway Development Ltd v Central Bank of Kenya, trust was not directly and substantially in issue in the succession cause, since determination of trusts is not within a Probate Court's mandate under the Law of Succession Act. Rule 41(3) of the Probate and Administration Rules allows beneficial-interest questions to be set aside for determination in separate proceedings. Further, the alleged trust arose after the grant was confirmed, per the 11th December 2015 family meeting minutes.

p. 4

Legal principles established

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  • The ELC has jurisdiction over disputes concerning trusts over land
  • Determination of a trust is not part of the mandate of a Probate Court; a claim of land held in trust must be brought in the ELC under Order 37 of the Civil Procedure Rules

Court orders

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  1. 1.The defendants' Preliminary Objection questioning this Court's jurisdiction and pleading res judicata is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13(1), 13(2)(a)-(e)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 37
  • Civil Procedure RulesOrder XXXVI rule 1
  • Probate and Administration RulesRule 41(3)
  • Law of Succession ActSections 71(2), 82

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Owners of the Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Ltd
    1989 K.L.R 1
  • Uhuru Highway Development Ltd vs Central Bank of Kenya & Others
    1996 eKLR
  • Theresa Costabir vs Roshanlal H. Sharma & Another
    C.A Civil Appeal No. 44 of 2014 Malindi (2015 eKLR)
  • Lydia Wathanu Maina & Another vs Irungu Karuku
    (2015) eKLR
  • Samuel Njau Wainaina vs Commissioner of Lands & Others
    2012 eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(1) 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, "Nancy Wakathare Nguri & 2 others v Edith Wagatu Nguri & 2 others [2017] KEELC 2087 (KLR)", Case Analysis (2017). ELC Case (Kerugoya) – suit concerning Kabare/Nyangati land parcels; Preliminary Objection filed 23rd August 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2087/eng@2017-08-16

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