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ELCOtherELC OS 17 of 2021 (Formerly Migori ELC OS E009 of 2020)· [2021] KEELC 339 (KLR)

Ishmael Owano Owaya v Lonah Bol Okuro & another [2021] KEELC 339 (KLR)

Environment and Land Court
15 December 2021
GOG M A Ongondo
771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Homa Bay land court paused an adverse possession claim until it reviews a related succession file, showing land disputes tied to estates need both records.

What this practically means

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Executive summary

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This interlocutory ruling arises from an Originating Summons dated 26th October 2020 in which the plaintiff, Ishmael Owano Owaya, claims title to LR Numbers Kanyada/Kanyabala/3646 and 3647 - sub-divisions of LR Kanyada/Kanyabala/1013 - by way of adverse possession under section 38 of the Limitation of Actions Act. The defendants, Lonah Bol Okur and Cliff Oriwo Okuro, opposed through a replying affidavit, asserting that the suit land is subject to Homa Bay High Court Succession Cause No. 698 of 2014 concerning the estate of the late Christopher Okuro Aruji, whose grant was confirmed on 15th December 2015, and that the plaintiff's claim would prejudice the estate's beneficiaries contrary to section 74 of the Law of Succession Act. The plaintiff had earlier sought revocation of the grant, and that summons was referred to this court but not determined. Rather than determining the suit, the court held that its jurisdiction flows from Article 162(2)(b) of the Constitution and sections 4 and 13 of the Environment and Land Court Act, and, noting it had not perused the succession cause record, directed the Deputy Registrar to call for the original record and certified copies of proceedings and orders in that cause within thirty days, with mention on 20th January 2022 for compliance and directions. No costs order was made.

Key legal issues

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Jurisdiction of the Environment and Land Court over the adverse possession claim and ancillary succession questions

Holding

The court's jurisdiction emanates from Article 162(2)(b) of the Constitution and sections 4 and 13 of the Environment and Land Court Act, and it directed that the succession cause record be availed before determining the suit

Reasoning

The court noted that jurisdiction flows from the Constitution or legislation, citing the Supreme Court decision in Samwel Kamau Macharia. It held that its jurisdiction derives from Article 162(2)(b) and the ELC Act. Because the suit parcels arise from a deceased's estate with a pending succession cause and subsisting orders, the court found it necessary to peruse that record before reaching an informed finding, invoking Section 3 of the ELC Act and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act to call for the record.

p. 2

Legal principles established

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  • The jurisdiction of a court or tribunal flows from either the Constitution or legislation or both

Court orders

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  1. 1.The Deputy Registrar of the court to call for the original record and/or certified typed copies of proceedings, orders and/or determination, if any, in Homa Bay High Court Succession Cause number 698 of 2014 within thirty (30) days for perusal by the court
  2. 2.Mention to confirm compliance and give directions on 20th January 2022
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and sections 4 and 13 of the Environment and Land Court Act, 2015

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, "Ishmael Owano Owaya v Lonah Bol Okuro & another [2021] KEELC 339 (KLR)", Case Analysis (2021). ELC OS 17 of 2021 (Formerly Migori ELC OS E009 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/339/eng@2021-12-15

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