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ELCDismissedELC Suit (application dated 9.4.2018, filed 23.4.2018)· [2018] KEELC 2604 (KLR)

Isaac Kinyua & 3 others v Hellen Kaigongi [2018] KEELC 2604 (KLR)

Environment and Land Court
11 July 2018
LMLucy N. Mbugua
1,281 words in judgment
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The bottom line

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The Environment and Land Court cannot stop a succession case, so land disputes tied to a deceased person's estate must be raised within that succession case itself.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the Environment and Land Court at Meru by an application dated 9.4.2018 seeking a stay of proceedings in SRM Succession Cause No. 22 of 2016 at Githongo Law Court until the hearing and determination of their ELC suit, plus costs. Their suit claims an interest in land parcels Abothuguchi/L-Kaongo/424 and 651, registered in the name of the deceased Sabelio Kinoti, on the basis that the deceased held the family land in trust for them. The applicants feared that if the succession cause, set for hearing on 2.5.2018, was finalized first, the land might change hands and render their claim a nullity. The respondents opposed, contending that the applicants had already filed a protest raising trust issues in the Githongo succession cause, that the present suit amounted to duplicity of proceedings, and that no trust was registered over the parcels. The court framed two issues: land ownership (including trust) claims in succession matters, and jurisdiction. Applying rule 41(3) of the Probate and Administration Rules and the Pricilla Ndubi case, the court held that ownership disputes arising in succession causes must be resolved before distribution and that the probate court may set aside the disputed share. However, the court found that succession matters fall outside the ELC's jurisdiction under Article 162(2) and section 13 of the Environment and Land Court Act; granting a stay of the succession cause would amount to straying beyond its jurisdiction. The application was accordingly dismissed with no orders as to costs.

Key legal issues

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Whether the ELC can stay proceedings in a succession cause pending determination of a land/trust claim in an ELC suit

Holding

No. The ELC lacks jurisdiction over succession matters; rule 41(3) mechanisms are for the probate court, and jurisdiction in the first instance lies with the court seized of the matter.

Reasoning

Article 162(2) and section 13 of the Environment and Land Court Act confer on the ELC jurisdiction over environment and land disputes only. Succession matters fall outside that ambit. Although rule 41(3) of the Probate and Administration Rules allows the probate court to set aside a share in dispute, such orders cannot issue from the ELC, which would otherwise stray into a field outside its jurisdiction.

p. 3
02

How ownership/trust claims arising in succession matters should be handled

Holding

Such claims must be resolved before distribution; the probate court may, under rule 41(3), set aside the disputed share to abide determination of the ownership question by the court with jurisdiction.

Reasoning

Relying on Pricilla Ndubi and Zipporah Mutiga v Gerishon Gatobu Mbui, the court noted that the primary duty of the probate court is distribution to rightful beneficiaries, requiring identification of estate property. Ownership issues raised in a succession cause must be resolved before distribution, which is the purpose of rule 41(3) of the Probate and Administration Rules.

p. 2

Legal principles established

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  • Succession matters do not fall within the jurisdiction of the Environment and Land Court; a stay of a succession cause cannot be granted by the ELC as that would amount to exercising jurisdiction it does not have.
  • Where a dispute regarding ownership of a deceased person's property arises in a succession cause, the probate court may set aside the share in dispute under rule 41(3) of the Probate and Administration Rules to await resolution by the court with jurisdiction.

Court orders

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  1. 1.The application dated 9.4.2018 is dismissed with no orders as to costs

Authorities

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Legislation

  • Probate and Administration RulesRule 41(3)
  • Law of Succession ActSection 82
  • Law of Succession ActSection 71(2)
  • Civil Procedure RulesOrder XXXVI, rule 1
  • Constitution of KenyaArticle 162(2)
  • Environment and Land Court ActSection 13(1) and (2)

Cases cited (1)

  • Pricilla Ndubi and Zipporah Mutiga vs. Gerishon Gatobu Mbui
    Meru Succession Cause No. 720 of 2013
Jurisdiction invoked
Article 162(2) of the Constitution; section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Isaac Kinyua & 3 others v Hellen Kaigongi [2018] KEELC 2604 (KLR)", Case Analysis (2018). ELC Suit (application dated 9.4.2018, filed 23.4.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2604/eng@2018-07-11

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