Mary Enole Nkolia & 2 others (Suing in their capacity as personal rep. of Parmuat Ole Togam deceased) v Allan Musanka Togom & 2 others [2019] KEELC 2607 (KLR)
The bottom line
#Kenya's Environment and Land Court cannot decide disputes over a deceased person's estate; such cases must go to the High Court Family Division.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over a dispute centred on a deceased person's estate
The court lacks jurisdiction because the central issue is the estate of the deceased, governed by the Law of Succession Act, which vests jurisdiction in the High Court Family Division; the suit is transferred there.
The suit land, though within the local jurisdiction of the ELC and registered in the 1st Defendant's name, is claimed by the Plaintiff as part of the estate of the late Paramuat Ole Togom. The court held that the estate question would be the central issue at trial, and that such matters fall under the Law of Succession Act, reserved for the High Court Family Division, not the ELC whose mandate under Article 162(2) is environment and use, occupation and title to land.
Whether the interim orders granted on 12th/13th March 2019 were sustainable
Order No. 3 appeared to be a final order which could not be granted at the interlocutory stage; the orders were vacated.
The 1st Defendant contended the orders were extreme, harsh and final at the interim stage and hence ultra vires ab-initio. The judge, on perusing the orders, agreed that order No. 3 was framed in terms of final orders that could not be granted at the interlocutory stage and therefore vacated them, while reserving the remaining preliminary objection grounds as issues of fact.
Legal principles established
#- The Environment and Land Court's jurisdiction under Article 162(2) covers disputes relating to environment and the use, occupation and title to land, but not the administration of a deceased person's estate, which falls to the High Court Family Division under the Law of Succession Act.
- Interim orders that are final in effect cannot properly be granted at the interlocutory stage.
Court orders
#- 1.Transfer of the suit to the High Court's Family Division for want of jurisdiction
- 2.Vacation of the orders issued on 12th/13th March, 2019, particularly order No. 3 which appeared final at the interlocutory stage
- 3.Each party to bear the cost of the application
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Local Authorities Provident Fund (Lapfund) v Emily Katito Kasirimo & 4 others [2021] KEELC 4202 (KLR)[2021] KEELC 4202 (KLR)24 Feb 2021
Cite this brief
#Cite this brief
Caselaw, "Mary Enole Nkolia & 2 others (Suing in their capacity as personal rep. of Parmuat Ole Togam deceased) v Allan Musanka Togom & 2 others [2019] KEELC 2607 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2607/eng@2019-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.