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ELCDismissedOriginating Summons dated 18th February, 2017 (Kericho ELC)· [2017] KEELC 2469 (KLR)

L J K v K K [2017] KEELC 2469 (KLR)

Environment and Land Court
30 June 2017
JOJANE M. ONYANGO
2,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court can hear a wife's claim over matrimonial land even against an unregistered heir who occupies it.

What this practically means

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Executive summary

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By Originating Summons dated 18th February 2017, the Plaintiff, the Defendant's wife, sought determinations concerning land parcel Kericho/Kapsaos/175, registered in the name of the Defendant's late father, including whether the Defendant as sole heir could subdivide, apportion or sell the land without her consent, whether it was matrimonial property, whether allocations to Josephine Chepkoech Soy Yegon and subsequent purchasers should be annulled, and whether the land should be registered jointly upon completion of succession. The Defendant filed a Replying Affidavit and a Notice of Preliminary Objection contending that only a Family Court through a succession process could determine the issues, that the claim disclosed no reasonable cause of action since he was not the registered owner, that the suit was sub judice given a similar suit in Eldoret ELC No. 290 of 2016, and that the suit was incompetent and an abuse of process. The court, applying John Kimani Njenga v Margaret Wanjiru Kanyiri and guided by Article 162 of the Constitution and Section 13 of the Environment and Land Court Act, held that its jurisdiction over title, use and occupation of land was not ousted by the parties' marriage, as the Matrimonial Property Act does not vest exclusive jurisdiction in the Family Court. It further held that an heir in occupation of inherited land is suable despite lack of transmission of title, and that sub judice did not arise since the Eldoret suit concerned different parcels. The Preliminary Objection was dismissed and the injunction application was directed to be fixed for hearing inter partes within 60 days.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over matrimonial property disputes

Holding

The ELC has jurisdiction notwithstanding the marital relationship of the parties; the Matrimonial Property Act does not vest exclusive jurisdiction in the Family Court

Reasoning

The court traced the ELC's jurisdiction to Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, which extends to disputes over title, use and occupation of land. It held that the Matrimonial Property Act does not vest exclusive jurisdiction over matrimonial property disputes in the Family Court division, and where a spouse's dealings affect third parties, the aggrieved spouse may elect to file in the ELC.

p. 5
02

Cause of action against a non-registered heir in occupation

Holding

A sole heir in occupation of inherited land can be sued notwithstanding that title has not been transmitted to him

Reasoning

The court took judicial notice that succession proceedings take time and that parties sometimes decline to commence succession to evade litigation. It held that the ends of justice require examining all circumstances, and an heir who inherits and occupies the deceased's land cannot resist suit merely because formal transmission of title has not occurred.

p. 5
03

Sub judice

Holding

The objection failed because the Eldoret suit concerned different land parcels

Reasoning

Although the parties and reliefs in Eldoret ELC No. 290 of 2016 were the same, the suit parcels there (Kondoo Farm No. 582 and Olainguse/OLAINGUSE Block 1 (Olainguse) 18) were substantially different from Kericho/Kapsaos/175, so the sub judice doctrine was not attracted.

p. 5

Legal principles established

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  • The Environment and Land Court's jurisdiction is not ousted by the fact that the parties to a land dispute are married to each other; disputes over matrimonial property affecting third parties may be brought in the ELC
  • A person who has inherited and occupies deceased's land cannot escape suit merely because title has not been transmitted to him through succession proceedings
  • Sub judice does not arise where the subject suit parcels in the parallel proceedings are substantially different

Court orders

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  1. 1.The Defendant's Preliminary Objection is dismissed
  2. 2.The application for injunction be fixed for hearing inter partes within the next 60 days

Authorities

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Legislation

  • Constitution of KenyaArticle 162(1), (2), (3)
  • Environment and Land Court ActSection 13(1), (2)(a),(b),(c),(e), (3), (7)(a)-(h)
  • Matrimonial Property Act, 2013Section 6(1), Section 12(1),(2)
  • Land Registration ActSection 93(1), 93(3)(b)

Cases cited (1)

  • John Kimani Njenga Vs. Margaret Wanjiru Kanyiri and 2 Others
    2015 KLR
Jurisdiction invoked
Article 162 of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "L J K v K K [2017] KEELC 2469 (KLR)", Case Analysis (2017). Originating Summons dated 18th February, 2017 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2469/eng@2017-06-30

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