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ELCAllowedNotice of Motion dated 21st April, 2020 (in originating summons dated 28th July, 2016)· [2020] KEELC 761 (KLR)

Sabina Jepng’etich & another v Rebecca Soi & another [2020] KEELC 761 (KLR)

Environment and Land Court
4 November 2020
SKS. M. Kibunja
1,140 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When a Kenyan land dispute involves inherited property, courts will pause the land case until the succession case is finished first.

What this practically means

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Executive summary

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The Plaintiffs, by a Notice of Motion dated 21st April, 2020 seeking stay of proceedings, asked the Environment and Land Court at Eldoret to halt this suit pending hearing and determination of Eldoret High Court Probate and Administration Cause No. 141 of 2019. The suit concerns land parcel Nandi/Kaboi/662. The Plaintiffs' case, through the affidavit of Sabina Japng'etich Soi, was that family land at Kericho was sold in the 1960s and replaced with a 31-acre parcel in Nandi bought from Kipsigei Arap Lasoi; her late husband William Kimutai Soi developed 15.5 acres; the land was registered in the name of his elder brother Chepkwony in trust, and after Chepkwony's death in 2012 his widow threatened eviction. The Plaintiffs had filed objection proceedings in the probate cause filed by the Defendants. The Defendants, through the replying affidavit of Rebecca Soi, opposed the stay, asserting that inheritance over the parcel, registered in her late husband's name, would be determined in the probate proceedings, that the Plaintiffs' land is Nandi/Kaboi/665, and that they never used Nandi/Kaboi/662. The court framed three issues: whether the subject matters are the same, whether stay was warranted, and costs. It found the probate cause relates to the estate of the registered proprietor of the suit property and that the risk of conflicting orders by the two courts was not far-fetched. It held it fair and just to allow the succession cause to be concluded first, with liberty to return to this suit for any unresolved substantive issues. The court allowed the motion, stayed these proceedings pending the probate cause, and ordered costs of the application to be in the cause.

Key legal issues

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Whether proceedings in the land suit should be stayed pending determination of a related probate and administration cause

Holding

Stay granted because the probate cause concerns the same suit land and could resolve most issues, avoiding conflicting orders.

Reasoning

The court found it was not contested that the probate cause relates to the estate of the registered proprietor of Nandi/Kaboi/662, the suit property. The Plaintiffs had filed objection proceedings in that cause. The possibility that the succession court and the land court could issue different orders over the same land was not far-fetched. If the succession court's determination suits the parties, most issues in this suit, except costs, would be settled without further hearing. Any unresolved substantive issues could be canvassed back in this suit. Fairness therefore favoured completing the succession cause first.

p. 2

Legal principles established

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  • Where a pending succession cause concerns the same subject matter as a land suit, it is fair and just to stay the land suit to avoid conflicting orders by two courts.

Court orders

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  1. 1.Stay of proceedings in this suit pending hearing and determination of Eldoret High Court Probate and Administration Cause No. 141 of 2019
  2. 2.Costs of the application to be in the cause
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land parcel Nandi/Kaboi/662; no specific constitutional or statutory provision cited

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, "Sabina Jepng’etich & another v Rebecca Soi & another [2020] KEELC 761 (KLR)", Case Analysis (2020). Notice of Motion dated 21st April, 2020 (in originating summons dated 28th July, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/761/eng@2020-11-04

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