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ELCOtherELC Case (Environment and Land Court, Kisumu) - number not stated in the judgment· [2020] KEELC 1053 (KLR)

William Opiyo Okumu v Joseph Ouma Adongo & 2 others [2020] KEELC 1053 (KLR)

Environment and Land Court of Kenya
13 October 2020
BOBoaz N. Olao
2,644 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to strike out a land ownership suit, confirming that succession proceedings cannot block landowners from litigating their claims in the Environment and Land Court.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu (drafted and signed at Bungoma) by Boaz N. Olao, J, on the 1st defendant's Notice of Motion dated 3rd March 2020 seeking to strike out the plaintiff's plaint and dismiss the suit with costs. The plaintiff, claiming to be the bona fide owner of land parcel KISUMU/BORDER/4, sought a declaration of ownership, rectification of title, a permanent injunction against the defendants, and costs, relying on a decision of the Nyanza Land Disputes Appeal Committee and alleging fraud in connection with Succession Cause No 403 of 2008 opened over the estate of Dominicus Adongo. The 1st defendant argued that the plaint was frivolous, vexatious and an abuse of process, and that the Court lacked jurisdiction because the suit land was the subject of the pending succession cause. The Court applied Order 2 Rule 15(1) of the Civil Procedure Rules and the settled principle that striking out is a draconian remedy exercised sparingly (D.T. Dobie v Muchina; Kivanga Estates; Yaya Towers). It held that the plaintiff pleaded a triable claim of bona fide ownership and that the 1st defendant made only sweeping, unsubstantiated allegations; striking out would infringe Article 50(1) of the Constitution. On jurisdiction, the Court held that Section 13(1) of the Environment and Land Court Act and Section 150 of the Land Act confer jurisdiction over land ownership disputes, that succession proceedings are not the appropriate vehicle for contested third-party claims against an estate, and that pendency of a succession cause could at most justify a stay, not striking out. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the plaint should be struck out as frivolous, vexatious, scandalous or an abuse of process

Holding

The application to strike out fails; the plaintiff pleaded a triable claim of bona fide ownership and sweeping allegations were not substantiated.

Reasoning

The 1st defendant made only sweeping allegations without demonstrating grounds. The plaintiff pleaded being the bona fide owner and pleaded fraud; whether he is the bona fide owner is a matter for trial. Striking out a plaint is a draconian remedy exercised sparingly, and doing so on the material before the Court would infringe the fair-hearing guarantee in Article 50(1) of the Constitution.

p. 3
02

Whether the pending succession cause ousts this Court's jurisdiction

Holding

It does not. The Environment and Land Court has jurisdiction over disputes concerning ownership of land, and succession proceedings are not the appropriate forum for third-party claims against an estate.

Reasoning

Section 13(1) of the Environment and Land Court Act and Section 150 of the Land Act confer jurisdiction over land disputes. The primary role of a Probate Court is to identify assets and beneficiaries; third-party ownership claims are resolved elsewhere, namely this Court, with Rule 41(3) of the Probate and Administration Rules permitting property to be set aside pending such determination. Pendency of a succession cause may at most justify a stay, not striking out.

p. 4

Legal principles established

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  • The power to strike out a pleading is draconian and should be exercised sparingly; a suit showing a mere semblance of a cause of action curable by amendment should go to trial
  • A plaintiff is entitled to pursue a claim however implausible unless the defendant can demonstrate shortly and conclusively that the claim is bound to fail or is an abuse of process
  • Succession proceedings are not the appropriate forum for determining contested third-party claims against a deceased's estate; disputed ownership of land falls to the Environment and Land Court
  • The pendency of a succession cause over the suit land is not a ground for striking out a plaint; at most it may found a stay of the suit

Court orders

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  1. 1.The 1st defendant's Notice of Motion dated 3rd March 2020 and filed on 5th March 2020 seeking to strike out the plaint and dismiss the suit is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 2 Rule 15(1)(b), (c), (d)
  • Environment and Land Court ActSection 13(1)
  • Land ActSection 150
  • Probate and Administration RulesRule 41(3)
  • Constitution of Kenya, 2010Article 50(1), Article 162(2)(b)

Cases cited (6)

  • D.T. DOBIE & CO LTD v MUCHINA
    1982 KLR 1
  • KIVANGA ESTATES LTD v NATIONAL BANK OF KENYA
    C.A Civil Appeal No 217 of 2015 [2017 eKLR]
  • JETLINK EXPRESS LTD v EAST AFRICAN SAFARI AIR EXPRESS LTD
    2015 eKLR
  • BEINOSI v WIYLEY
    1973 S.A 721 SCA
  • YAYA TOWERS LTD v TRADE BANK LTD (IN LIQUIDATION)
    C.A Civil Appeal No 35 of 2000 [2000 eKLR]
  • LAWRENCE v LORD NORREYS
    (1890) 15 APP CAUSE 210 at 219
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13(1) of the Environment and Land Court Act and Section 150 of the Land Act

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, "William Opiyo Okumu v Joseph Ouma Adongo & 2 others [2020] KEELC 1053 (KLR)", Case Analysis (2020). ELC Case (Environment and Land Court, Kisumu) - number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1053/eng@2020-10-13

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