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ELCDismissedOriginating Summons dated 13.7.2020 (Meru ELC)· [2021] KEELC 230 (KLR)

Gerald Muriuki v Benson Mbibua [2021] KEELC 230 (KLR)

Environment and Land Court
15 December 2021
CNC. K. Nzili
807 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court threw out an attempt to dismiss an ancestral land claim, ruling that arguments requiring fact-finding cannot be raised as preliminary objections.

What this practically means

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Executive summary

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The plaintiff filed an originating summons dated 13.7.2020 under Order 37 rule 1 of the Civil Procedure Rules seeking determinations on whether the parties' parents were related and shared common property, whether the defendant's father held L.R No. Ntima/Igoki/134 in trust for the plaintiff under Kimeru customary law, whether the plaintiff is entitled to a share of ancestral land, and whether fraud was committed. The defendant filed a preliminary objection dated 12.4.2021 contending the suit was res judicata, having regard to Succession Cause No. 37 of 2000 in which similar issues were determined on 26.9.2019, and that the summons was a nullity, vexatious and an abuse of process. The plaintiff in response urged that the matter be heard on its merits rather than on technicalities. The court found that the pleadings disclosed contested issues of fact, and crucially that no pleadings from the succession cause had been supplied to enable assessment of the res judicata claim. Relying on Oraro and Musakali, the court held the objection did not raise a pure point of law. The court also observed the jurisdictional demarcation between the succession court under Section 2 of the Law of Succession Act and the ELC under Section 13 of the ELC Act, noting cross-setting under Rule 41(3) of the Probate & Administration Rules. The preliminary objection was dismissed with costs, and the parties were directed to comply with case conference procedures within 45 days. The suit now proceeds to hearing on the merits.

Key legal issues

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01

Whether the res judicata preliminary objection could be determined without production of the pleadings from the succession cause

Holding

The objection could not succeed because the court had not been supplied with the pleadings from the succession case to assess whether the claim was res judicata, and the matter involved contested issues of fact

Reasoning

The court found that the pleadings disclosed contested issues of fact between the parties. No pleadings from Succession Cause No. 37 of 2000 had been supplied to enable assessment of the res judicata claim. Citing Oraro and Musakali, the court held a preliminary objection must be a pure point of law; one requiring factual ascertainment is incompetent.

p. 1
02

The jurisdictional demarcation between the ELC and the family/probate courts in land succession disputes

Holding

Section 2 of the Law of Succession Act confines the succession court's jurisdiction to succession proceedings only, not determination of land ownership; ELC and family courts have cross-referral mechanisms under Rule 41(3) of the Probate & Administration Rules

Reasoning

The court noted that the Law of Succession Act limits the probate court to succession matters, while the ELC's jurisdiction is defined under Section 13 of the ELC Act. Cross-setting of issues is provided for by Rule 41(3) of the Probate & Administration Rules, and the proper prescribed procedure must be followed per Karume.

p. 1

Legal principles established

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  • A preliminary objection that requires ascertainment of facts does not raise a pure point of law and cannot succeed
  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • The High Court cannot assume jurisdiction over ELC matters

Court orders

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  1. 1.The preliminary objection dated 12.4.2021 is dismissed with costs
  2. 2.Parties to comply with case conference procedures within 45 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 1
  • Law of Succession ActSection 2
  • Probate & Administration RulesRule 41(3)
  • Environment and Land Court ActSections 13, 26(3) and (4)
  • Magistrates Court Act
  • Constitution of KenyaArticles 162(2) and 165(5)(b)

Cases cited (8)

  • Priscilla Ndubi & Zipporah Mutiga –vs- Gerishon Gatobu
    [2013] eKLR
  • Speaker of National Assembly –vs- James Njenga Karume
    [1992] eKLR
  • Republic –vs- Chief Land Registrar & Another
    [2019] eKLR
  • In Re Estate of Late M'Ikuura Mukindia – Deceased
    [2021] eKLR
  • Elizabeth Akinyi Mokkonen v Annue Buore Oginga
    [2018] eKLR
  • Isaac Kinyua & 3 Others –vs- Hellen Kaigongi
    [2018] eKLR
  • George Oraro –vs- Barak Eston Mbaja
    [2005] eKLR
  • John Musakali –vs- Speaker of County Assembly of Bungoma & 4 Others
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and the Environment and Land Court Act, 2011

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, "Gerald Muriuki v Benson Mbibua [2021] KEELC 230 (KLR)", Case Analysis (2021). Originating Summons dated 13.7.2020 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/230/eng@2021-12-15

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