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ELCStruck OutE006 of 2020 (original plaint dated 28/9/2020)· [2021] KEELC 571 (KLR)

Jeremiah Mwangi Kihara & 3 others v Joshua Njoroge Kihara & another [2021] KEELC 571 (KLR)

Environment and Land Court
30 November 2021
BEB M Eboso
1,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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You cannot challenge how a family estate was distributed by filing a fresh land case in the Environment and Land Court—go back to the succession court.

What this practically means

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Executive summary

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The plaintiffs, children of the late Lydia Wambui Waweru, sued contending that five parcels of land registered in the name of the late Kihara Waweru were family land of their grandfather, Waweru Kihara (died 1962), held subject to a customary trust in favour of the estate of the late Lydia. They sought a declaration of customary trust and an order allocating half shares, contending the defendant was procuring distribution of Kihara's estate in disregard of their entitlement. The defendant filed a notice of preliminary objection arguing the suit was time-barred under the Limitation of Actions Act and that the court lacked jurisdiction because the titles were obtained through Succession Cause No. 5 of 1967. Holding a preliminary objection, the court framed two issues: jurisdiction and limitation. It found the suit was in substance a challenge to succession court orders made in respect of the estate of Waweru Kihara, notwithstanding that it was couched in customary trust terms. While acknowledging that the Environment and Land Court has jurisdiction over customary trust disputes, the court held this was not such a claim; the proper forum was the succession court which distributed the estate. Applying the Owners of Motor Vessel 'Lilian S' principle, the court downed its tools and struck out the suit. Mindful that the parties are grandchildren and great-grandchildren of the same ancestor, the judge directed each party to bear its own costs. The limitation issue was not reached.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a claim challenging registration of land obtained through succession orders

Holding

The court lacks jurisdiction; the suit is a succession dispute notwithstanding its customary-trust dressing

Reasoning

The pleadings showed the plaintiffs were contesting succession orders that registered Kihara Waweru as absolute proprietor in 1981. Although the ELC has jurisdiction over customary trusts, the court found the claim was really that provision ought to have been made for the late Lydia in the distribution of the estate, which is for the succession court. Invoking Owners of Motor Vessel 'Lilian S', the judge declined jurisdiction and struck out the suit.

p. 3
02

Whether the plaintiffs' claim is statute-barred under the Limitation of Actions Act

Holding

Not determined; the suit was struck out on jurisdiction without reaching the limitation issue

Reasoning

The preliminary objection raised limitation under Sections 7 and 9 of the Limitation of Actions Act, and counsel for the defendants argued the 12-year period lapsed in 1974. The court framed limitation as the second issue but issued only sequential pronouncements on jurisdiction first, and on finding no jurisdiction, disposed of the suit without ruling on limitation.

p. 2

Legal principles established

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  • A challenge to succession court orders must be mounted in the succession cause, not by a fresh suit in the Environment and Land Court
  • A court without jurisdiction must down its tools at the moment it so holds

Court orders

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  1. 1.The suit herein is struck out on the ground that it is a succession dispute relating to the estate of Waweru Kihara who died in 1962 and the dispute should be adjudicated in the succession cause in which the said estate was distributed
  2. 2.Parties shall bear their respective costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 9(1), (2) and (3)
  • Constitution of Kenya 2010Articles 162 and 162(2)(b)
  • Environment & Land Court ActSection 13
  • Law of Succession ActSection 98

Cases cited (1)

  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd
    (1989) 1 KLR
Jurisdiction invoked
Article 162 of the Constitution of Kenya 2010 read with Section 13 of the Environment & Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Jeremiah Mwangi Kihara & 3 others v Joshua Njoroge Kihara & another [2021] KEELC 571 (KLR)", Case Analysis (2021). E006 of 2020 (original plaint dated 28/9/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/571/eng@2021-11-30

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