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ELCPartially AllowedApplication dated 2nd October 2017 in suit filed 11th July 2017 (Machakos)· [2019] KEELC 4915 (KLR)

Monicah Mutio Munguti v Peter Kikubi Munguti & another [2019] KEELC 4915 (KLR)

Environment and Land Court
25 January 2019
OAO.A. Angote
929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land transferred through a succession order can only be challenged in that same succession case, not a fresh lawsuit.

What this practically means

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Executive summary

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The Defendants applied by Notice of Motion dated 2nd October 2017 for dismissal of the Plaintiff's suit on the grounds that the Environment and Land Court lacked jurisdiction to declare property matrimonial property, and alternatively that the suit was an abuse of process. The Plaintiff, wife of the 1st Defendant, sued for a declaration that Muthetheni/Nyaani/665 was matrimonial property and for cancellation of its title following its transfer to the 2nd Defendant in November 2016 without her consent. The Defendants showed that the land originated from the Estate of Katuva Munguti and that by a Rectified Certificate of Confirmation of Grant dated 12th November 2015, the High Court in Machakos Succession Cause No. 261 of 2011 ordered 3.1 acres transferred to the 2nd Defendant. The Plaintiff argued that whether land is matrimonial property is a question of fact requiring evidence, and that the Matrimonial Property Act designates no particular court for declarations. The court held that since the transfer to the 2nd Defendant was effected by a High Court order in a succession cause, only that court could nullify it, as this court cannot annul an order of a court of concurrent jurisdiction. The Plaintiff's remedy lay in the succession cause. The suit was struck out with costs.

Key legal issues

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Jurisdiction of the Environment and Land Court to nullify a transfer ordered by the High Court in a succession cause

Holding

The court lacks jurisdiction; only the succession court can nullify the transfer made pursuant to its own confirmed grant

Reasoning

The Rectified Certificate of Confirmation of Grant issued in Machakos Succession Cause No. 261 of 2011 ordered 3.1 acres of the land transferred to the 2nd Defendant. Since that order emanated from the High Court, a court of concurrent jurisdiction, this court cannot annul it in this suit. Any challenge to the distribution must be mounted in the succession cause itself, rendering the present suit incompetent.

Legal principles established

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  • A court cannot annul an order made by a court of concurrent jurisdiction; a party aggrieved by a succession court's order must seek relief in that cause

Court orders

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  1. 1.The Plaintiff's suit is struck out
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Succession Actnull
  • Land Laws (Amendment) Act, 2016null
  • Matrimonial Property Actnull
Jurisdiction invoked
Jurisdiction of the Environment and Land Court vis-a-vis the High Court in matrimonial property and succession matters; no specific provision invoked

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, "Monicah Mutio Munguti v Peter Kikubi Munguti & another [2019] KEELC 4915 (KLR)", Case Analysis (2019). Application dated 2nd October 2017 in suit filed 11th July 2017 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4915/eng@2019-01-25

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