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ELCStruck OutNot stated in the judgment (plaint dated 6/3/2020)· [2021] KEELC 1112 (KLR)

Eunice Njeri Kimani & 2 others v Wallace Njoroge Kibui alias Kibui Wallace Njoroge [2021] KEELC 1112 (KLR)

Environment and Land Court
4 November 2021
BEB M Eboso
2,165 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out siblings' land claim against their brother, ruling that disputes over inherited property belong in the succession court, not the Environment and Land Court.

What this practically means

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Executive summary

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The plaintiffs sued their brother claiming that their grandmother and mother, administrators of the estate of the late Wollis Kimani Njoroge, had substituted the defendant for their mother as beneficiary, intending that he hold the family share of Dagoretti/Mutuini/243 (subdivided as Dagoretti/Mutuini/1119) in trust for himself and his sisters. They sought a declaration of trust, equal sharing or sale of the parcel, production of the title, and costs. Together with a notice of motion dated 23/11/2020 seeking interlocutory injunctive relief, the suit was contested by a preliminary objection dated 19/3/2021 arguing that the claim was time-barred under section 7 of the Limitation of Actions Act, that the court lacked jurisdiction because the defendant was registered via transmission following a certificate of confirmation of grant in Nyahururu PMCC Succession Cause No. 40 of 2002, and that the pleadings were founded on an incurable illegality. Applying Owners of Motor Vessel 'Lilian S', the court disposed of the jurisdictional objection first. It found the plaintiffs were in substance challenging the certificate of confirmation of grant, which gave the defendant the property absolutely and disclosed no trust; the proper forum for a disinherited claimant, where the property has not changed hands, is the succession court, which may vary or rectify the certificate under the Law of Succession Act. The court declined to rule on limitation or the motion, laying down its tools for want of jurisdiction. The preliminary objection was upheld, the suit struck out, with costs to the plaintiffs, who remain at liberty to seek redress in the succession court.

Key legal issues

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01

Whether the ELC has jurisdiction over a claim to estate property distributed via a certificate of confirmation of grant

Holding

Court lacks jurisdiction; the dispute is a succession dispute for the succession court.

Reasoning

The plaintiffs were in substance challenging a certificate of confirmation of grant issued in Nyahururu PMCC Succession Cause No. 40 of 2002, which gave the defendant the suit property absolutely. The certificate disclosed no trust. The succession court has power under the Law of Succession Act to vary or rectify the certificate to provide for the plaintiffs if a proper case is established, so that is the proper forum.

p. 3
02

Whether the plaintiffs' claim was time-barred under section 7 of the Limitation of Actions Act

Holding

Not determined, to avoid prejudicing the parties in the proper forum.

Reasoning

Having found the court lacked jurisdiction, the judge declined to rule on limitation since an opinion on it could prejudice the parties before the succession court. The court 'laid down its tools' per Owners of Motor Vessel 'Lilian S'.

p. 3
03

Whether a replying affidavit may oppose a preliminary objection

Holding

No; the court ignored the 'Reply to Notice of Preliminary Objection' sworn by the plaintiff.

Reasoning

Relying on Mukisa Biscuits, the court held preliminary objections are argued on law and pleadings only; affidavits are inadmissible. The court therefore considered only the plaintiffs' written submissions.

p. 2

Legal principles established

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  • Where a dispute is essentially a succession dispute over distribution of a deceased's estate under a certificate of confirmation of grant, the proper forum is the succession court, not the Environment and Land Court, particularly where the suit property has not changed hands.
  • A preliminary objection must be disposed of first where it raises jurisdiction.
  • No affidavits (supporting or replying) are admissible in respect of a preliminary objection; only law and pleadings.

Court orders

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  1. 1.The defendant's preliminary objection is upheld on the ground that the proper court to adjudicate the dispute is the succession court seized of the succession cause relating to the estate of the late Wollis Njoroge Kimani
  2. 2.The plaintiffs' suit is struck out
  3. 3.The plaintiffs shall bear costs of the suit

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22) Laws of Kenyasection 7
  • Registered Land Act (repealed)section 30(g)
  • Law of Succession Actnot specified

Cases cited (2)

  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd
    (1989) 1 KLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Environment and Land Court jurisdiction (Art. 162(2)(b) framework implied); court found it lacked jurisdiction over the succession dispute

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, "Eunice Njeri Kimani & 2 others v Wallace Njoroge Kibui alias Kibui Wallace Njoroge [2021] KEELC 1112 (KLR)", Case Analysis (2021). Not stated in the judgment (plaint dated 6/3/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1112/eng@2021-11-04

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