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ELCDismissedPetition (Eldoret ELC) - number not stated in judgment· [2018] KEELC 3888 (KLR)

Maria Jebet arap Masoin & 2 others v Kipkoech Lagat & another [2018] KEELC 3888 (KLR)

Environment and Land Court
19 March 2018
AOA. Ombwayo
5,090 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Long-term occupation of a deceased relative's land does not make it legally yours in Kenya — you must complete succession court proceedings first.

What this practically means

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Executive summary

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The three petitioners - the widow and sons of the late Kili Arap Masoin - petitioned the Environment and Land Court at Eldoret alleging that the respondents, brothers-in-law of the 1st petitioner and beneficiaries of the estate of the late Chelagat Chebasa Ribison, demolished the 1st petitioner's newly built house on 9th September 2016 and threatened eviction. The suit land, Cheptiret/Cheplaskei/Block I (Kipchamo) 58 measuring 17.816 Ha (44 acres), remains registered in the name of the deceased Chelagat Chebasa, who died intestate. The petitioners claimed their rights under Article 40 of the Constitution were violated, asserting a gift inter vivos of 30 acres and inheritance rights, and sought declarations, damages (including Kshs. 88,700 special damages) and an injunction pending succession. The respondents argued the petitioners held no grant of administration or instrument conferring proprietary rights over the unadministered estate. The court framed two issues: jurisdiction and alleged violation of rights. It found jurisdiction under Article 162(2)(b) and section 13 of the Environment and Land Court Act, as the petition was grounded on use and occupation of land. However, it held that horizontal application of the Bill of Rights should be resisted where Parliament has provided exhaustive statutory mechanisms; property of a deceased person passes only through succession, and the petitioners' occupation had not crystallised into Article 40 rights. The petition was dismissed with no order as to costs, the parties being directed to pursue probate and administration proceedings.

Key legal issues

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01

Whether the ELC has jurisdiction over a constitutional petition between private parties concerning occupation of a deceased person's land

Holding

The court has jurisdiction because the petition is grounded on use and occupation of land.

Reasoning

Article 162(2)(b) mandates a superior court for disputes on the use and occupation of, and title to, land. Section 13 of the Environment and Land Court Act elaborates this jurisdiction, including contracts or instruments granting enforceable interests in land, and empowers the court to grant injunctions, damages and declarations. Since the petitioners occupy and use the suit land, the dispute falls within the court's jurisdiction.

p. 5
02

Whether the respondents violated or threatened the petitioners' Article 40 right to property

Holding

No violation; the petitioners' occupation of unadministered estate land has not crystallised into Article 40 rights, and the dispute is private, to be resolved through succession and land statutes.

Reasoning

The respondents are private persons, not the State, so the duty to protect rights falls on the State through legislation. Parliament enacted the Law of Succession Act, the Land Act and the Land Registration Act to regulate devolution of deceased persons' property. Horizontal application of the Bill of Rights is an exception, not the rule, and should not apply where an exhaustive legal mechanism exists. The petitioners must pursue probate and administration proceedings.

p. 6

Legal principles established

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  • The Environment and Land Court has jurisdiction over petitions grounded on use, occupation and utilization of land in dispute.
  • Horizontal application of the Bill of Rights does not apply as a rule to land disputes founded on succession where Parliament has provided an exhaustive statutory mechanism.
  • Property of a deceased person can only be acquired through succession; occupation pending grant does not confer Article 40 rights.

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 20, 21, 22, 23, 259, 260, 40(1) & (2), 42, 69, 70, 162(1), 162(2)(b), 162(3), 169
  • Environment and Land Court ActSection 13
  • Land Registration Act No 2 of 2012Section 61(1), 61(2), 61(3)
  • Registered Land ActSections 24(A) and 25
  • Land Act No 6 of 2012not specified
  • Law of Succession Act Cap 160not specified

Cases cited (5)

  • Jemima Wambui Ikere Case
  • Isaac Ngugi v Nairobi Hospital & 3 Others
    Nairobi Petition No. 407 of 2012 [2013] eKLR
  • Satrose Ayuma and 11 Others v Registered Trustees of Kenya Railway Staff Retirement Benefits Scheme
    Nairobi Petition No. 65 of 2010 [2013] eKLR
  • Motala & Another v University of Natal
    (1995) 3 BCLR 374
  • Mwangi Stephen Mureithi v Daniel Toroitich Arap Moi
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act, Act No. 19 of 2011

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, "Maria Jebet arap Masoin & 2 others v Kipkoech Lagat & another [2018] KEELC 3888 (KLR)", Case Analysis (2018). Petition (Eldoret ELC) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3888/eng@2018-03-19

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