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ELCDismissedChamber Summons application dated 1st December 2017 (appeal pending before the Environment and Land Court, Thika)· [2018] KEELC 2021 (KLR)

Stephen Mwangi Karuku & 2 others v Julius Kiragu Githutha [2018] KEELC 2021 (KLR)

Environment and Land Court
13 July 2018
1,452 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 refused to let an appeal continue against a deceased person, ruling it lacked power to issue grants of administration and the appeal had already died.

What this practically means

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Executive summary

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The Appellants/Applicants filed a Chamber Summons dated 1st December 2017 seeking leave to take out Letters of Grant for the estate of the Respondent, Julius Kiragu Githutha, who died on 9th January 2016 before the hearing and determination of an appeal, and to substitute his name so the appeal could proceed. The Respondent's advocates filed a Notice of Preliminary Objection dated 19th February 2018 contending the application was defective, misconceived and an abuse of process, and submitted that the Environment and Land Court lacked jurisdiction because grants of Letters of Administration fall under Section 47 of the Law of Succession Act within the High Court's purview, and further that the appeal had abated under Order 24 Rule 4 of the Civil Procedure Rules. The Appellants relied on Section 3 of the Environment and Land Court Act, arguing they only sought leave and would file the succession petition in the appropriate court before returning for substitution. Justice L. Gacheru applied the 'Lillian S' principle that jurisdiction is everything, held that the ELC's jurisdiction under Section 13 of the ELC Act does not extend to succession or administration of estates, and that the proper forum was the High Court Family Division or magistrates' courts. The court further found that the appeal against the deceased abated on 9th January 2017 by operation of law, one year after death, without substitution, citing Titus Kiragu v Jackson Mugo Mathai. The Preliminary Objection was upheld entirely and the Chamber Summons dismissed with costs to the Respondent, with liberty to pursue the proper forum and later seek revival of the appeal.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over succession matters

Holding

The ELC has no jurisdiction to grant Letters of Administration; the proper forum is the High Court Family Division or magistrates' courts

Reasoning

The court noted that grants of Letters of Administration are governed by the Law of Succession Act, Section 47 of which vests jurisdiction in the High Court. The ELC is established under Article 162(2)(b) with jurisdiction under Section 13 of the ELC Act limited to environment and land disputes. Succession and administration of estates fall outside that jurisdiction, so the application was filed in the wrong court.

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02

Abatement of the appeal against the deceased Respondent

Holding

Under Order 24 Rule 4(iii), the appeal against the deceased abated one year after his death, on 9th January 2017, as no substitution was made

Reasoning

The Respondent died on 9th January 2016. No application for substitution was made within one year as required by Order 24 Rule 4(iii), so the suit abated by operation of law in January 2017. Consequently, no appeal was in existence and the application could not be entertained. The court held that the Appellants should first obtain Letters of Administration in the proper court, then seek revival of the appeal and substitution.

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Legal principles established

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  • A court without jurisdiction must down its tools and take no further step
  • A suit abates by operation of law, not by the court's declaration of abatement

Court orders

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  1. 1.The Notice of Preliminary Objection dated 19th February 2018 is upheld entirely
  2. 2.The Chamber Summons application dated 1st December 2017 is dismissed entirely with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSections 3 and 13
  • Law of Succession Act (Cap 160)Section 47
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 24 Rule 4(iii)

Cases cited (2)

  • The Owners of the Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Titus Kiragu vs Jackson Mugo Mathai
    (2015) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Section 47 of the Law of Succession Act (Cap 160); Section 3A of the Civil Procedure 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, "Stephen Mwangi Karuku & 2 others v Julius Kiragu Githutha [2018] KEELC 2021 (KLR)", Case Analysis (2018). Chamber Summons application dated 1st December 2017 (appeal pending before the Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2021/eng@2018-07-13

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