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ELCPartially AllowedE.L.C. Civil Suit No. 412 of 2011· [2018] KEELC 221 (KLR)

Hannah Nyokabi Kariuki Murihia & another v Paul Kangethe Kirai & 7 others [2018] KEELC 221 (KLR)

Environment and Land Court
26 November 2018
KBK. BOR
909 words in judgment
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The bottom line

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A Kenyan court ordered family members to cooperate in subdividing inherited land under a confirmed grant, ruling the Environment and Land Court had jurisdiction.

What this practically means

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Executive summary

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Two brothers, the late Daniel Kariuki Murihia (father of the plaintiffs) and the late Samuel Kirai Murihia (father of the defendants), acquired parcels Dagoretti/Riruta/3465 and 3466. A three-storeyed rental building stands on parcel 3465, from which both families derive rent without dispute. The plaintiffs, suing as administrators of Daniel's estate, claimed that the families agreed at a meeting on or about 30/5/2010 to share the two properties equally and that a surveyor was to subdivide the suit property (parcel 3466), but the defendants refused to cooperate and instead put up structures on it. They sought a permanent injunction over parcel 3465, an order compelling subdivision and sharing, production of a status report and documents, general damages, costs and interest. The defendants filed no defence and called no evidence, but in submissions admitted being in occupation of the suit property and constructing on it, contending that the dispute fell within succession matters reserved for the High Court under Section 7 of the Law of Succession Act. The court noted that the confirmed grant distributed only the building on parcel 3465 and that the suit property was not listed among the assets distributed. Holding that no useful purpose would be served by granting prayers 1 and 2 since parcel 3465 was not in dispute, the court granted prayer 3, directing the defendants to cooperate in having both parcels subdivided and titles issued in accordance with the confirmation of grant, subject to minimum land size restrictions, and awarded the plaintiffs the costs of the suit.

Key legal issues

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01

Jurisdiction of the Environment and Land Court vis-à-vis the High Court in succession matters

Holding

The court exercised its jurisdiction and granted relief relating to the land notwithstanding the defendants' objection that succession matters belong to the High Court

Reasoning

The defendants argued that the suit property formed part of the estates of the deceased brothers and that under Section 7 of the Law of Succession Act only the High Court could deal with distribution of estate assets. The court did not uphold the objection; it examined the documents, noted the suit property was not among the assets distributed in the confirmed grant, and proceeded to grant orders compelling cooperation in subdivision and issuance of titles.

p. 2
02

Whether the orders sought in the plaint should be granted

Holding

Prayer 3 was granted; prayers 1 and 2 were declined as unnecessary

Reasoning

The court found no contest over Dagoretti/Riruta/3465 since both families shared the rent peacefully. The real contention was the undeveloped Suit Property, on which the defendants admitted being in occupation and constructing. The court directed the defendants to cooperate in subdivision and issuance of titles per the confirmation of grant, subject to minimum land size laws, and awarded costs to the plaintiffs.

p. 2

Legal principles established

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  • Where parties agree on subdivision and sharing of land and one side refuses to cooperate, the court can direct cooperation in effecting subdivision and issuance of titles in accordance with the confirmation of grant, subject to statutory minimum land size restrictions

Court orders

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  1. 1.Prayer 3 of the plaint granted - the Defendants to produce the status report for the Suit Property and all relevant documents in relation to the two plots
  2. 2.The Defendants are directed to cooperate with the Plaintiffs in having the two parcels of land subdivided and titles issued in accordance with the confirmation of grant, bearing in mind the laws on the restriction on the minimum sizes of land
  3. 3.The Plaintiffs awarded the costs of the suit

Authorities

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Legislation

  • Law of Succession ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land; defendants contested jurisdiction under Section 7 of the Law of Succession Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hannah Nyokabi Kariuki Murihia & another v Paul Kangethe Kirai & 7 others [2018] KEELC 221 (KLR)", Case Analysis (2018). E.L.C. Civil Suit No. 412 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/221/eng@2018-11-26

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