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ELCDismissedNot stated in the judgment (Application dated 8th October 2019; Preliminary Objection dated 22nd October 2019)· [2020] KEELC 3364 (KLR)

Josiah Ouma Mbori & another v Edward Odhiambo Oria (Being the legal representative of the estate of the late Chrysanthus Onyuka) [2020] KEELC 3364 (KLR)

Environment and Land Court
27 February 2020
GOG.M.A Ong'ondo
2,608 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that land ownership disputes can be heard by the Environment and Land Court even when a succession case over the same land is ongoing elsewhere.

What this practically means

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Executive summary

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The Applicants purchased L.R Kasipul/Kasimba/474 from Chrysanthus Onyuka (Deceased) during his lifetime, but the property was never formally transferred. After the deceased's death, the Respondent obtained temporary letters of administration in Oyugis Chief Magistrate's Succession Cause No. 107 of 2019, which the Applicants alleged was a scheme to dispossess them. They filed a Notice of Motion dated 8th October 2019 in the Environment and Land Court at Migori seeking, inter alia, an inhibition against registration of any transfer, lease or charge over the suit property pending hearing. When the application came up for inter partes hearing on 22nd October 2019, the Respondent raised a Notice of Preliminary Objection on three grounds: that the ELC lacked jurisdiction since the matter was subject to the Oyugis succession cause; that the application was incompetent because no grant had been confirmed; and that a ruling in the succession cause was pending. The Applicants submitted that the ELC had exclusive jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the ELC Act over disputes on ownership of land, including claims of constructive trust and adverse possession, citing authority that probate courts cannot determine ownership questions. The Respondent conceded the matter was a land issue but argued concurrent jurisdiction with the High Court as succession court. Ong'ondo J held that the dispute related to ownership of land and fell squarely within the ELC's jurisdiction; the contention that the matter was a succession dispute was devoid of merit. Further, the other grounds of the objection rested on facts requiring evidential ascertainment, failing the Mukisa Biscuits threshold. The Preliminary Objection was dismissed with costs, and the application was directed to be heard on merits on a priority basis.

Key legal issues

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01

Whether the Environment and Land Court lacks jurisdiction over a land dispute arising in the context of a pending succession cause

Holding

The objection failed. The dispute concerns ownership of land, which falls squarely within the ELC's jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the ELC Act, and the pendency of a succession cause does not oust that jurisdiction.

Reasoning

The court held that the Applicants' claim - constructive trust and adverse possession over L.R Kasipul/Kasimba/474 - relates to ownership of land. Jurisdiction is conferred by Article 162(2)(b) and section 13 of the ELC Act. Citing the succession jurisprudence (Re Estate of Julius Ndubi Javan; Re Estate of Stone Kathuli Muinde; Pricilla Ndubi), ownership questions must be resolved before distribution of an estate, and the probate court cannot determine ownership. The contention that the matter is purely a succession dispute was 'devoid of merit'.

p. 4
02

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

It did not. Beyond the jurisdictional ground (a pure question of law), the remaining grounds rested on facts regarding Chief Magistrate Succession Cause No. 107 of 2019 that could only be ascertained by evidence, disqualifying them as true preliminary objections.

Reasoning

Relying on Mukisa Biscuits, Oraro -vs- Mbaja, John Musakali and County Government of Migori, the court reiterated that a preliminary objection must be a point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit, and must not be blurred by contested factual details requiring proof through evidence. The objection referenced facts about the Oyugis succession cause requiring evidence.

p. 4

Legal principles established

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  • A dispute relating to ownership of land falls within the exclusive jurisdiction of the Environment and Land Court notwithstanding that it arises in the context of a succession cause.
  • A preliminary objection that alludes to facts which can only be ascertained by way of evidence fails to meet the Mukisa Biscuits threshold.
  • A preliminary objection must not derive its foundation from factual information which stands to be tested by normal rules of evidence.

Court orders

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  1. 1.The Preliminary Objection dated 22nd October 2019 and filed on even date, is hereby dismissed with costs.
  2. 2.The application dated 8th October 2019 to be heard on merits on priority basis.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court Actsection 13
  • Environment and Land Court Act No. 19 of 2011section 16A
  • Limitation of Actions Act (Cap 22)sections 7 and 38
  • Law of Succession Act (Cap 160, Laws of Kenya)section 47
  • Probate and Administration Rulesrule 41(3)

Cases cited (17)

  • Re Estate of Julius Ndubi Javan (Deceased)
    [2018] eKLR
  • Re Estate of Stone Kathuli Muinde (Deceased)
    [2016] eKLR
  • Isaac Kinyua & 3 Others -vs- Hellen Kaigongi
    [2018] eKLR
  • Pricilla Ndubi and Zipporah Mutiga -vs- Gerishon Gatobu
    Meru Succession Cause No. 720 of 2013
  • Re Estate of Andrea Ooko Tianga (Deceased)
    [2019] eKLR
  • Munyasya Mulili & 3 Others -vs- Sammy Muteti Mulili
    (2017) eKLR
  • Salome Wambui Njau (suing as administratrix of the Estate of Peter Kiguru Njuguna (Deceased) -vs- Caroline Wangui Kiguru
    ELC (2013) eKLR
  • Mohamud Iltarakwa Koochale & 5 Others (suing on behalf of the residents of Laisamis constituency and Karare ward of Marsabit County) -vs- Lake Turkana Wind Power Ltd & 4 others
  • Gladys Boss Shollei -vs- Judicial Service Commission & Another
    (2018) eKLR
  • Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors
    (1969) EA 696
  • John Musakali vs. Speaker County of Bungoma & 4 others
    (2015) eKLR
  • County Government of Migori -vs- I N B Management IT Consulting Limited
    [2019] eKLR
  • Oraro -vs- Mbaja
    (2005) KLR 141
  • Republic -vs- Karisa Chego and others
    (2017) eKLR
  • Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko and 2 others
    (2013) eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others
    (2012) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act, 2015 (2011)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Josiah Ouma Mbori & another v Edward Odhiambo Oria (Being the legal representative of the estate of the late Chrysanthus Onyuka) [2020] KEELC 3364 (KLR)", Case Analysis (2020). Not stated in the judgment (Application dated 8th October 2019; Preliminary Objection dated 22nd October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3364/eng@2020-02-27

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