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ELCDismissednull (not stated in the judgment; the matters before the Court were the Notice of Motion dated 7th May 2020 and the Notice of Motion dated 27th May 2020)· [2020] KEELC 113 (KLR)

Catherine Wairimu Kigera v Julia Njoki Kigera [2020] KEELC 113 (KLR)

Environment and Land Court
17 December 2020
3,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a sibling's attempt to stop construction on inherited Nanyuki land, ruling succession disputes belong in the High Court.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nakuru (M.C. Oundo, ELJ) on two applications by the Plaintiff, Catherine Wairimu Kigera, against her sibling, Julia Kigera. By a Notice of Motion dated 7th May 2020, the Plaintiff sought an interlocutory injunction restraining the Defendant from entering upon, selling, leasing, alienating or constructing on Nanyuki LR No. B12/2/2787/X11/40 (Title IR No.7337). Interim status quo orders issued on 8th May 2020. When the Defendant allegedly continued construction, the Plaintiff filed a further application dated 27th May 2020 seeking that she be cited for contempt. The parties were co-administrators and equal beneficiaries of the estate of Jane Njeri Kigera under a grant confirmed on 7th May 2018 in Nairobi Succession Cause No. 2097 of 2014, in which the Defendant had a pending application for revocation of the grant. The Defendant argued the dispute concerned estate property and fell within the exclusive jurisdiction of the High Court under the Law of Succession Act. Relying on Rajesh Pranjivan Chdasama v Sailesh Pranjivan Chudasama, the Court held that injunctive relief is available within succession causes under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, and that the pending revocation application was a succession matter for the High Court, not the ELC. Applying MV Lillian S v Caltex Oil Kenya Ltd, the Court held that jurisdiction is everything and a court without jurisdiction must down tools. Both applications were dismissed with costs.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a dispute between siblings as co-administrators and co-beneficiaries of a deceased's estate regarding the use and development of estate property

Holding

The Court has no jurisdiction; the dispute is a succession matter for the High Court, which is seized of the pending application for revocation of the grant in Nairobi Succession Cause No. 2097 of 2014.

Reasoning

The Court noted the case began as a Succession Cause in the High Court, where a confirmation of grant vested the suit property in the parties equally and the Respondent has a pending application for revocation of the grant. Relying on Rajesh Pranjivan Chdasama v Sailesh Pranjivan Chudasama, the Court held that Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules confer on the High Court all-embracing powers, including injunctions, to safeguard estates. The ELC therefore lacked jurisdiction.

p. 4
02

Whether the Plaintiff had established a prima facie case, irreparable harm and inadequacy of damages under the Giella v Cassman Brown test

Holding

The Court did not reach the merits of the injunction application, having first determined that it lacked jurisdiction.

Reasoning

Following MV Lillian S v Caltex Oil Kenya Ltd, the Court held that a question of jurisdiction must be decided at the earliest opportunity on the material before it, and once a court holds it lacks jurisdiction it must down tools and cannot take any further step, including entertaining the injunction and contempt applications on their merits.

p. 4

Legal principles established

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  • Jurisdiction is foundational: a court without jurisdiction must down tools and cannot take any further step in the proceedings
  • Injunctive relief is available in succession causes under Section 47 of the Law of Succession Act read with Rule 73 of the Probate and Administration Rules

Court orders

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  1. 1.Both the applications dated the 7th May 2020 and the 27th May 2020 are dismissed
  2. 2.The Defendant is awarded costs of both applications

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Law of Succession ActSection 47
  • Probate and Administration RulesRule 73

Cases cited (8)

  • Re Estate of Alice Mumbua Mutua (deceased)
    [2017] eKLR
  • Samuel Kamuau Macharia & Another vs. Kenya Commercial Bank & 2 Others
    [2012] eKLR
  • Giella vs. Cassman Brown
  • Naftali Ruthi Kinua vs Patrick Thuita Gachure & Another
    [2015] eKLR
  • Lucy Wangui Gachara vs Minudi Okemba Lore
    [2015] eKLR
  • Rajesh Pranjivan Chdasama vs Sailesh Pranjivan Chudasama
    [2014] eKLR
  • Floris Pierro V Giancario Falasconi, Civil appeal No. 145 of 2012 (UR)
  • The Owners of MV Lillian "S" V. Caltex Oil Kenya Ltd
    [1989] KLR 1
Jurisdiction invoked
Article 162(2) of the Constitution read with the Environment and Land Court Act (implied); the Court instead found the dispute fell under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, within the exclusive jurisdiction of the High Court

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, "Catherine Wairimu Kigera v Julia Njoki Kigera [2020] KEELC 113 (KLR)", Case Analysis (2020). null (not stated in the judgment; the matters before the Court were the Notice of Motion dated 7th May 2020 and the Notice of Motion dated 27th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/113/eng@2020-12-17

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