Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutELC Case No. 156 of 2017· [2019] KEELC 3282 (KLR)

Wencilaus Barasa Bushebi v Pascal Netia [2019] KEELC 3282 (KLR)

Environment and Land Court
7 May 2019
NMN.A. Matheka
703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court struck out an eviction and trespass suit because the land still belonged to a deceased person's estate and only the succession court could handle it.

What this practically means

#

Executive summary

#
The plaintiff sued the defendant at the Environment and Land Court at Kakamega seeking permanent injunction and eviction from land parcel No. E. Wanga Malaha 483, general damages for trespass, and costs. He averred that the land was registered in the name of the deceased Toroni Bushebi Mateba, whose estate was the subject of Kakamega HCCC Succession Cause No. 395 of 1998; a grant issued on 7/5/2012 awarding the plaintiff 2.97 acres, but subdivision, mutation and transfer remained pending. He alleged the defendant had trespassed on and intermeddled with his awarded portion. The defendant was served but did not file a defence; the plaintiff testified as PW1. The court framed a single issue: its own jurisdiction. It recited the ELC's jurisdiction under Articles 162(2)(b) and 165(3)(a) of the Constitution and Section 13 of the Environment and Land Court Act, and cited John Kimani Njenga v Margaret Wanjiru Kanyiri & others and Section 105 of the Land Act confirming exclusive ELC jurisdiction over land disputes. However, because the suit land formed part of a deceased's estate whose succession process was incomplete, the court held that administration and distribution of the estate are the sole preserve of the succession court, and the ELC was not seized of jurisdiction. The suit was accordingly struck out, with no orders as to costs given that it was undefended. Judgment was delivered at Kakamega on 7 May 2019 by N.A. Matheka, Judge.

Key legal issues

#
01

Jurisdiction of the ELC over land forming part of an undistributed deceased's estate

Holding

The ELC has no jurisdiction to entertain the claim because the succession process over the suit land is incomplete; administration and distribution of the estate fall to the succession court.

Reasoning

The court acknowledged its broad jurisdiction under Article 162(2)(b), 165(3)(a) and Section 13 of the Environment and Land Court Act over land disputes. However, since the suit land was the subject of Kakamega HCCC Succession Cause No. 395 of 1998, with the grant confirmed but subdivision, mutation and transfer still pending, distribution of the estate remained the province of the succession court. Lacking jurisdiction, the court struck out the undefended suit.

p. 2

Legal principles established

#
  • Where a suit land forms part of a deceased's estate and the succession process is not complete, the succession court has the sole duty to administer and distribute the estate, and the Environment and Land Court lacks jurisdiction over such distribution.

Court orders

#
  1. 1.The suit is struck out
  2. 2.No orders as to costs
Jurisdiction invoked
Article 162(2)(b) and 165(3)(a) of the Constitution of Kenya 2010 and Section 13 of the Environment and Land Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wencilaus Barasa Bushebi v Pascal Netia [2019] KEELC 3282 (KLR)", Case Analysis (2019). ELC Case No. 156 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3282/eng@2019-05-07

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