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ELCStruck OutMigori ELC Civil Suit (plaint dated 16th April 2018) - preliminary objection dated 22nd May 2018· [2018] KEELC 202 (KLR)

Rose Auma Ongeng & 2 others v Jenifer Flora Ombaka [2018] KEELC 202 (KLR)

Environment and Land Court
13 November 2018
GOG. M. A. Ongondo
1,895 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a land claim because it had already been decided in a 1990 succession case and the plaintiffs had no legal capacity to sue.

What this practically means

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Executive summary

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The plaintiffs sued the defendant by a plaint dated 16th April 2018 seeking revocation of the title to land parcel Suna East/Wasweta 1/625, a declaration that the land belongs to the plaintiff family, and costs. They alleged the defendant fraudulently obtained title from the deceased, Samwel Ongeng Anya, husband of the 1st and 2nd plaintiffs and father of the 3rd plaintiff, without their knowledge or consent. The defendant filed a statement of defence and counterclaim, asserting she lawfully purchased the land from the deceased, together with a preliminary objection dated 22nd May 2018 under Section 7 of the Civil Procedure Act and Order 51 Rule 14(a) of the Civil Procedure Rules, contending the suit was res judicata given Migori Resident Magistrate's Court Succession Cause No. 23 of 1990, and that the court lacked jurisdiction over what was essentially a succession matter. Counsel cited John Florence Maritime Services, Kamunye v Pioneer General Assurance, and Republic v Karisa Chengo. The court framed two issues: whether the suit was res judicata and whether the court had jurisdiction. It held that the plaintiffs' claim was hinged on the estate of the deceased, that the same issues had been heard and finally determined in the succession cause, that the grant of letters of administration issued to the defendant had not been challenged under Section 76 of the Law of Succession Act, and that the plaintiffs lacked capacity to sue. Invoking Republic v Karisa Chengo, the court held it lacked jurisdiction over the succession dispute and downed its tools. The preliminary objection was upheld and the plaintiffs' suit struck out with costs to the defendant.

Key legal issues

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01

Res judicata

Holding

The issues in dispute in the suit were the same issues raised and finally determined in Migori Resident Magistrate's Court Succession Cause No. 23 of 1990 by a competent court, so the suit is res judicata.

Reasoning

The plaintiffs' claim was hinged on land allegedly owned by the deceased, and the same issues were determined in the succession cause. The defendant's objection to the grant had been upheld, she was declared personal representative, and the grant of letters of administration intestate issued to her was never challenged under Section 76 of the Law of Succession Act.

p. 3
02

Jurisdiction over succession disputes

Holding

The Environment and Land Court lacks jurisdiction over succession disputes; succession and probate matters are governed by the Law of Succession Act.

Reasoning

Counsel for the defendant submitted, relying on Article 162(2)(b) of the Constitution, Section 13(2) of the Environment and Land Court Act and Republic v Karisa Chengo, that the suit was purely in the nature of succession and probate/administration governed by Sections 2 and 76 of the Law of Succession Act. The court agreed that it lacked jurisdiction over the succession dispute and declined to entertain it.

p. 3
03

Capacity of the plaintiffs to sue

Holding

The plaintiffs had no requisite capacity to originate the suit, having purported to claim as beneficiaries/legal representatives of the deceased's estate without letters of administration.

Reasoning

The court applied Section 2 of the Civil Procedure Act on the meaning of legal representative, Order 4 Rule 4 of the Civil Procedure Rules on capacity of parties, and Section 79 of the Law of Succession Act that property of a deceased person vests in the personal representative. Since the plaintiffs claimed as beneficiaries of the estate, they lacked capacity.

p. 3

Legal principles established

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  • Res judicata bars subsequent proceedings involving the same issue, the same parties or their representatives, where the issue was finally and conclusively decided by a competent court.
  • Where a court lacks jurisdiction over a succession dispute, it must down its tools.

Court orders

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  1. 1.The defendant's preliminary objection dated 22nd May 2018 is upheld
  2. 2.The suit brought by way of a plaint dated 16th April 2018 is struck out
  3. 3.Costs of the suit to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 2
  • Civil Procedure Rules, 2010Order 51 Rule 14(a)
  • Civil Procedure Rules, 2010Order 4 Rule 4
  • Law of Succession Act (Cap 160)Sections 2, 76 and 79
  • Environment and Land Court ActSection 13(2)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (6)

  • John Florence Maritime Service Ltd and Anor –v- Cabinet Secretary for Transport and Infrastructure and 3 others
    (2015) eKLR
  • Kamunye and Others –v- Pioneer General Assurance Society Ltd
    (1971) EA 263
  • Republic –v- Karisa Chengo & 2 others
    (2017) eKLR
  • Henderson –v- Henderson
    (1842) ER 313
  • Karia & Another –v- The Attorney General and others
    (2005) 1 EA 83
  • Mwangi & anor –v- Mwangi
    (1986) KLR 328
Jurisdiction invoked
Articles 162(2)(b) of the Constitution of Kenya 2010 and Section 13(2) of the Environment and Land Court Act read with Section 7 of the Civil Procedure Act (Cap 21)

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, "Rose Auma Ongeng & 2 others v Jenifer Flora Ombaka [2018] KEELC 202 (KLR)", Case Analysis (2018). Migori ELC Civil Suit (plaint dated 16th April 2018) - preliminary objection dated 22nd May 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/202/eng@2018-11-13

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