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ELCDismissedNot stated in judgment (Plaint dated 12th February 2018)· [2020] KEELC 3096 (KLR)

Eglyne Chepchirchir Choge & 3 others (Suing as Administrators to the Estate of Simeon Kiptum Choge (Deceased) v Singa Ham Edambo & 3 others [2020] KEELC 3096 (KLR)

Environment and Land Court
5 March 2020
1,849 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a plaint dated 12th February 2018, the plaintiffs, administrators and family members of the late Simeon Kiptum Choge, sued the defendants seeking a permanent injunction, cancellation of entries made on 9/11/2012 in respect of land parcel NANDI/KAPKERER/279, a declaration that the parcel forms part of the estate of the late Simeon Kiptum Choge, and an order transferring the parcel to that estate. The plaintiffs' evidence traced the parcel through land adjudication proceedings, an objection, and a Ministerial appeal decided in Simeon Choge's favour, while showing that the defendants obtained registration through Kisumu Succession Cause No. 58 in the estate of Elly Edambo Kamidi, whose grant was confirmed on 19th May 2006 by Justice J.W Mwera. The defendants' witness acknowledged the restriction and the appeal in Choge's favour but maintained that by 2002 no appeal was pending and that his late father's estate validly obtained title. The court, per M. A. Odeny J, held that the dispute had already been adjudicated in multiple fora and that the defendants' title flowed from a confirmed and unrevoked grant. The plaintiffs' remedy, if aggrieved by that succession cause, was revocation or annulment of the grant under Section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules, not a fresh suit. The court found it lacked jurisdiction to grant the orders sought and dismissed the suit with costs to the defendants.

Key legal issues

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01

Whether the Environment and Land Court had jurisdiction to determine the suit

Holding

The court lacked jurisdiction because the defendants' title flowed from a confirmed grant in Kisumu Succession Cause No. 58 that had not been revoked

Reasoning

The defendants held title issued upon registration of the certificate of confirmation of grant. The plaintiffs' real grievance was with the distribution in the succession cause. The proper remedy was revocation or annulment of the grant under Section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules, not a fresh declaratory suit in this court.

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02

Whether the suit land belonged to the estate of Simeon Kiptum Choge

Holding

The court declined to make this declaration, holding that such a determination belongs to the succession forum

Reasoning

Although adjudication records and appeal proceedings indicated the land was to be registered in Simeon Choge's name, a succession cause had listed the parcel and distributed it to the defendants, and the grant remained unrevoked. An earlier attempt by the deceased to have the grant revoked lapsed. The court therefore could not declare the land part of the estate.

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Legal principles established

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  • Where title derives from a confirmed grant in a succession cause that has not been revoked, a party must seek revocation or annulment of the grant rather than challenge the title in a fresh suit
  • A claim to have property declared part of a deceased's estate lies in the succession court while the grant remains in force

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs to the defendants

Authorities

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Legislation

  • Law of Succession ActSection 76
  • Probate and Administration RulesRule 44
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit filed by plaint); jurisdiction disputed by the court itself

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, "Eglyne Chepchirchir Choge & 3 others (Suing as Administrators to the Estate of Simeon Kiptum Choge (Deceased) v Singa Ham Edambo & 3 others [2020] KEELC 3096 (KLR)", Case Analysis (2020). Not stated in judgment (Plaint dated 12th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3096/eng@2020-03-05

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