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ELCStruck OutBusia High Court SUCCESSION CAUSE (referenced); Originating Summons dated 27th October 2017· [2019] KEELC 5067 (KLR)

Julia Aluoch Wesonga v Dorcas Odunga Ogoye & another [2019] KEELC 5067 (KLR)

Environment and Land Court
24 July 2019
AKA. K. Kaniaru
1,490 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 dispute, confirming inheritance distribution cases must be filed in the High Court's succession division.

What this practically means

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Executive summary

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The defendants, Dorcas Odunga Ogoye and Edward Omondi Mola, filed a Notice of Motion dated 24th May 2018 under Order 2 Rule 15(1)(d) of the Civil Procedure Rules seeking striking out of the plaintiff Julia Aluoch Wesonga's Originating Summons dated 27th October 2017 on the ground that the court lacked jurisdiction. The plaintiff, sister of the 1st defendant, had previously succeeded in Busia High Court Succession Cause No. 356 of 2010, where she was made a joint administratrix of their deceased mother's estate, including declared and undeclared assets. She filed the present suit seeking cancellation of titles LR Nos BUKHAYO/MUNDIKA/13084 and 13085, their reversion to the original parcel BUKHAYO/MUNDIKA/10419, and equal distribution of the parcel allegedly left out of the confirmation of grant. The defendants contended the claim was in substance a succession dispute for the High Court. The plaintiff countered that the succession court could only redistribute the property after rectification of title by this court, and further objected to the defendants' application being supported by an affidavit sworn by their advocate. Applying the Owners of the Motor Vessel 'Lillian S' principle, the court held that the prayers delved into administration and distribution of a deceased's estate, wholly within the High Court's jurisdiction, and that the ELC handles succession-related land issues only on referral by the High Court. The application was allowed in terms of prayer (a), with each party bearing their own costs given their close relationship.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over a claim that is in substance a succession dispute

Holding

The ELC lacks jurisdiction where the reliefs sought are for administration and distribution of a deceased's estate; such matters belong to the High Court in its probate and administration jurisdiction

Reasoning

The court examined the Originating Summons' prayers, which sought cancellation of titles and reversion of the parcel to the original title for 'proper, fair and equal distribution'. Distribution of a deceased's estate is a matter for the High Court. The ELC is seized of succession-related land issues only on referral by the High Court handling the main succession cause, not on parties' own motion. The earlier High Court ruling had already made the plaintiff joint administratrix over declared and undeclared assets.

p. 2
02

Effect of an affidavit sworn by an advocate containing contentious facts

Holding

Where the court lacks jurisdiction, the objection that the defendants' affidavit was sworn by their advocate is immaterial and cannot cure the defects in the claim

Reasoning

The plaintiff argued that the supporting affidavit sworn by the defendants' advocate offended Order 19 rule 3(1) of the Civil Procedure Rules, which restricts advocates to swearing affidavits in interlocutory matters without contentious facts. The court found that authorities cited on this point had little bearing, since the fatal defect was want of jurisdiction, which no affidavit irregularity could cure.

p. 2

Legal principles established

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  • A court without jurisdiction must down tools immediately and cannot take any further step in the proceedings

Court orders

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  1. 1.The Notice of Motion Application dated 24th May 2018 is allowed in terms of prayer (a), striking out the Originating Summons
  2. 2.Each party to bear their own legal costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(b), 162(3)
  • Land ActSection 150
  • Environment and Land Court ActSections 4 and 7
  • Law of Succession ActSection 76
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(d)
  • Civil Procedure Rules, 2010Order 19 rule 3(1)

Cases cited (5)

  • Co-operative Bank of Kenya Limited Vs Patrick Kangethe Njuguna & 5 Others
    (2017) eKLR
  • Mohammed Abdi Mahamud Vs Ahmed Abdullahi Mohamad & 3 Others
    (2018) eKLR
  • Republic Vs Attorney General & 2 Others Exparte South and Central (Thika) Investments Limited
    (2015) eKLR
  • Albany Taylor & Another Vs Christopher Taylor & Another
    (2008) eKLR
  • Owners of the Motor Vessel "Lillian S" Vs Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Article 162(b) and 162(3) of the Constitution as read with Section 150 of the Land Act and sections 4 and 7 of the Environment and Land Court Act; Order 2 Rule 15(1)(d) of the Civil Procedure Rules 2010

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, "Julia Aluoch Wesonga v Dorcas Odunga Ogoye & another [2019] KEELC 5067 (KLR)", Case Analysis (2019). Busia High Court SUCCESSION CAUSE (referenced); Originating Summons dated 27th October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5067/eng@2019-07-24

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