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ELCStruck OutPlaint dated 28th May, 2012 (Machakos ELC)· [2017] KEELC 3707 (KLR)

Charles Saruni Kieya & 2 others v Loise Sintoiya Kisuya & 2 others [2017] KEELC 3707 (KLR)

Environment and Land Court
27 January 2017
OAO. A. Angote
1,375 words in judgment
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The bottom line

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The court struck out the family's land dispute because the same issues had already been decided in a succession case, confirming appeals—not fresh lawsuits—are the remedy.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O. A. Angote, J) determined the Plaintiffs' Notice of Motion dated 28th May, 2012 seeking a temporary injunction restraining the Defendants from transferring, sub-dividing or interfering with Title Number Ngong/Ngong/3209, together with substituted service, and the 1st and 2nd Defendants' amended preliminary objection asserting that the Plaintiffs lacked locus standi and that the suit contravened the Registered Land Act, the Civil Procedure Act and the Government Proceedings Act. The Plaintiffs, beneficiaries of the estate of the late Stanley Kailol Kieya, deponed that the suit property had been registered in the names of the deceased's widows as trustees on the advice of the Public Trustee, and that the Defendants were sub-dividing it without consulting all beneficiaries. The Defendants relied on a Certificate of Confirmation of Grant in Mombasa High Court Succession Cause No. 313 of 2008 showing how the share of the late Loise Waithera Stanley was to be sub-divided, and pointed out that the Plaintiffs had already sought similar orders in that cause, in which Odero, J delivered a ruling on 24th September, 2014 directing survey and distribution of that share. The court found the application and suit res judicata, holding that dissatisfied Plaintiffs should appeal rather than relitigate, and further held that it lacked jurisdiction over disputes concerning distribution of the two deceased estates, which must be pursued in the succession causes in which they were administered. The amended preliminary objection was allowed and both the Plaint and the Notice of Motion were struck out with costs. Judgment delivered at Machakos on 27th January, 2017.

Key legal issues

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01

Res judicata

Holding

The Plaintiffs' suit and application are res judicata as the same issues were raised and determined in Mombasa High Court Succession Cause No. 313 of 2008, in which Odero, J delivered a ruling on 24th September, 2014.

Reasoning

The Plaintiffs had previously filed an application in Mombasa Succession Cause No. 313 of 2008 seeking to prohibit the Defendants from sub-dividing the suit property and to set aside the court's orders. Odero, J heard the matter and issued directions on survey and distribution. The court held it could not revisit that decision; the proper remedy was an appeal.

p. 3
02

Jurisdiction over succession disputes

Holding

This court has no jurisdiction to determine whether the Defendants are intermeddling with the estates of the deceased, such disputes being for the succession courts where the estates were administered.

Reasoning

The dispute plainly concerned the succession and distribution of the estates of Stanley Kailol Kieya (Administration Cause No. 80 of 1980) and Loise Waithera Stanley (Mombasa Succession Cause No. 313 of 2008). Any dispute over distribution amongst beneficiaries must be pursued in those causes, not before the ELC.

p. 3
03

Locus standi and the preliminary objection

Holding

The Defendants' amended preliminary objection on locus standi was allowed on the strength of the res judicata and jurisdiction findings.

Reasoning

The 1st and 2nd Defendants objected that the Plaintiffs had no locus standi and that the suit contravened section 21(4) of the Registered Land Act, section 5 of the Civil Procedure Act and section 16 of the Government Proceedings Act. The court resolved the matter on res judicata and jurisdiction without deciding the statutory provisions.

p. 3

Legal principles established

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  • Where issues raised in a suit were previously raised and determined by a court of competent jurisdiction, the subsequent suit is res judicata; the aggrieved party's remedy is appeal, not a fresh suit.
  • The Environment and Land Court lacks jurisdiction to determine disputes concerning the distribution of a deceased's estate; such disputes belong to the succession court.

Court orders

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  1. 1.The Defendants' amended Notice of Preliminary Objection dated 4th December, 2014 is allowed
  2. 2.The Plaintiffs' Plaint dated 28th May, 2012 and the Notice of Motion dated 28th May, 2012 are struck out with costs

Authorities

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Legislation

  • Registered Land Actsection 21(4)
  • Civil Procedure Actsection 5
  • Government Proceedings Actsection 16
Jurisdiction invoked
Environment and Land Court jurisdiction under the ELC Act; court sua motu examined res judicata under section 7 of the Civil Procedure Act and its lack of jurisdiction over succession disputes

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, "Charles Saruni Kieya & 2 others v Loise Sintoiya Kisuya & 2 others [2017] KEELC 3707 (KLR)", Case Analysis (2017). Plaint dated 28th May, 2012 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3707/eng@2017-01-27

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