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ELCStruck OutELC Case No. 245 of 2017 (Kericho)· [2019] KEELC 2983 (KLR)

Lorna Chelangat Marindany v Recho Chepngetich Soi [2019] KEELC 2983 (KLR)

Environment and Land Court
14 June 2019
JOJ. M. Onyango
1,536 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 struck out a family land sub-division suit, ruling that disputes over distributing a deceased person's estate belong in the High Court's succession division.

What this practically means

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Executive summary

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The plaintiff, a co-administrator of the estate of Mathew Kiptanui Soi (deceased), sued the defendant, the other co-administrator, seeking an order for sub-division of land parcel Kericho/Roret/1974 into two portions - 11.5 hectares to herself and 4.99 hectares to the defendant - plus orders compelling the defendant to avail the title deed and execute sub-division documents, sharing of sub-division costs, and costs of the suit. The property is jointly registered in the parties' names and held in trust for the beneficiaries of the deceased under a Certificate of Confirmation of Grant issued on 16 September 2013 by the High Court in Kericho HC Succession Cause No. 56 of 2010. The defendant raised a preliminary objection contending that the court lacked jurisdiction because the suit effectively seeks to set aside or vary the orders of a court of concurrent jurisdiction, discloses no cause of action, and is an abuse of process. The single issue framed was whether the Environment and Land Court had jurisdiction. Relying on the Owners of Motor Vessel Lillian 'S' principle and considering Article 162(2)(b) and section 13 of the Environment and Land Court Act, the court held that the suit was not merely about use, occupation or title to land but concerned the distribution of a deceased's estate among administrators and beneficiaries, possibly requiring accounts under section 83 of the Law of Succession Act. The proper forum was the High Court's succession jurisdiction. The preliminary objection was upheld, the suit struck out, and as the parties were members of the same family, each party was ordered to bear their own costs.

Key legal issues

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Whether the Environment and Land Court has jurisdiction over a suit seeking sub-division of property held in trust under a confirmed grant in a succession cause

Holding

The court lacks jurisdiction; the suit effectively seeks to re-distribute a deceased's estate, which is within the High Court's succession jurisdiction

Reasoning

Although the ELC has jurisdiction over disputes relating to title and occupation of land under Article 162(2)(b) and section 13 of the ELC Act, this suit is not merely about land use or title. The suit property is registered jointly and held in trust for beneficiaries under a Certificate of Confirmation of Grant issued by the High Court in Kericho HC Succession Cause No. 56 of 2010. The proposed sub-division would vary that distribution, and may require administrators to render accounts under section 83 of the Law of Succession Act. The proper forum is therefore the High Court (Family Court).

p. 3

Legal principles established

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  • Where a dispute involves distribution of a deceased's estate under a confirmed grant, the proper forum is the High Court in its succession jurisdiction, not the Environment and Land Court
  • Jurisdiction must be determined at the earliest opportunity; without it a court cannot take any further step

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The suit is struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticles 42, 69 and 70
  • Environment and Land Court ActSection 13(2)
  • Environment and Land Court ActSection 13(3)
  • Environment and Land Court ActSection 13(7)
  • Law of Succession ActSection 83

Cases cited (2)

  • The Owners of Motor Vessel Lillian "S" v Caltex Oil Kenya Limited
    1989 KLR 1653
  • In re Estate of John Maraga Gwako – Deceased
    (2017) eKLR
Jurisdiction invoked
Article 162(2)(b) 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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Cite this brief

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Cite this brief

Caselaw, "Lorna Chelangat Marindany v Recho Chepngetich Soi [2019] KEELC 2983 (KLR)", Case Analysis (2019). ELC Case No. 245 of 2017 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2983/eng@2019-06-14

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