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ELCStruck OutSuccession Cause No. 295 of 2012 (formerly Embu Succ. Cause No. 455 of 2009)· [2020] KEELC 2212 (KLR)

In re Estate of Late Patrick Mureithi Njogu (Deceased) [2020] KEELC 2212 (KLR)

High Court of Kenya at Kerugoya
29 May 2020
LGL. W. Gitari
2,132 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kerugoya court struck out a protest claiming family land was held in trust, ruling succession courts cannot decide land trust disputes.

What this practically means

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Executive summary

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This is a first-instance ruling in a succession cause before the High Court at Kerugoya concerning the intestate estate of Patrick Mureithi Njogu, who died on 1st January 2009. A grant of letters of administration issued to the Petitioner, Peris Wanjira Muriithi, who sought confirmation of the grant by application dated 22nd October 2010. Several affidavits of protest were filed. Following a consent of 13th December 2018, the grant was confirmed save that two parcels (Ngariama/Thirikwa/481 and 1524) were excluded from distribution pending Kerugoya ELC No. 46 of 2018, and the court was to determine the 9th Protestor Johnson Gichobi Wahome's claim to one acre of Ngariama/Thirikwa/1522 on the evidence. The 9th Protestor claimed he had bought the acre from Mariko Njuki in 1997 and that the deceased, his pastor, held the parcel in trust for him. The court framed two issues: its jurisdiction over trust matters, and whether the trust was proved. Relying on the Owners of Motor Vessel 'Lilian S' principle, Article 162(2)(b) of the Constitution, the Environment and Land Court Act and the Supreme Court's decision in Karisa Chengo, the court held that claims of trust over registered land fall within the exclusive jurisdiction of the Environment and Land Court, not the succession court. The protestors claimed no beneficial interest as dependants or beneficiaries under the Law of Succession Act. The court further held that the protestor's consent to its determination could not confer jurisdiction. The protest was struck out with costs, liberty being effectively left to the protestor to pursue a declaratory suit in the proper forum.

Key legal issues

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01

Jurisdiction of the succession court over trust claims

Holding

The court lacks jurisdiction to entertain the protest founded on an alleged trust of registered land

Reasoning

Article 162(2)(b) of the Constitution and the Environment and Land Court Act establish the ELC to determine disputes relating to the use, occupation of and title to land. Claims that a registered proprietor holds land in trust are matters of title falling within the ELC's exclusive jurisdiction. The protestors did not claim as dependants or direct beneficiaries under the Law of Succession Act, so their claim does not fit within the succession cause. Parties' consent cannot clothe the court with jurisdiction.

02

Whether the alleged trust was proved

Holding

Not determined, as the court declined jurisdiction and did not reach the merits

Reasoning

Having found that it lacked jurisdiction over the trust claim, the court held it could not take the further step of determining the merits of the protestor's claim that the deceased held Ngariama/Thirikwa/1522 in trust. The protestor was directed to the proper forum - a separate suit before a court with jurisdiction to declare whether or not a trust exists.

p. 4

Legal principles established

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  • Jurisdiction is donated by statute and a party cannot confer jurisdiction on a court by consent
  • The High Court sitting in succession lacks jurisdiction to determine claims of trust over registered land; such claims fall within the jurisdiction of the Environment and Land Court

Court orders

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  1. 1.The Protest by Johnson Gichobi Wahome against the confirmation of grant filed on 7th March, 2017 be and is hereby struck out
  2. 2.The Protest be struck out with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b); Article 163(3); Article 165(5)
  • Law of Succession ActCap 160 - Preamble
  • Land Registration ActSection 2
  • Environment and Land Court ActNo. 19 of 2011 - Preamble

Cases cited (4)

  • Owners of the Motor-vessel 'Lilian(s)' -vs- Caltex Oil Kenya Limited
    (1989) 1 KLR
  • In the Matter of the Advisory Opinion of the Supreme Court under Article 163(3) of the Constitution, Constitutional Application No. 2 of 2011
  • Republic, Karisa Chengo & Jefferson Kalama Kengha -vs- Kitsao Chalo Ngati
    Petition No. 5 of 2015
  • In the Estate of Njuguna Igwima
    Succession Cause No. 1905 of 2012
Jurisdiction invoked
Law of Succession Act (Cap 160); High Court succession jurisdiction

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, "In re Estate of Late Patrick Mureithi Njogu (Deceased) [2020] KEELC 2212 (KLR)", Case Analysis (2020). Succession Cause No. 295 of 2012 (formerly Embu Succ. Cause No. 455 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2212/eng@2020-05-29

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