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ELCPartially AllowedSiaya Environment and Land Case Number 10 of 2021· [2021] KEELC 1235 (KLR)

Nehemiah Mwanda Onyango v Maurice Oduor Abuny & 3 others [2021] KEELC 1235 (KLR)

Environment and Land Court
2 November 2021
3,239 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that probate cases don't decide land ownership, so a land suit dismissed as 'res judicata' was reinstated for hearing.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Siaya against a ruling of Hon. J.O. Ong'ondo delivered on 28 November 2019 in Siaya PM ELC No. 69 of 2019, which struck out the appellant's suit as res judicata, upholding a preliminary objection on the basis that the matters had been conclusively dealt with in Kisumu CM Succession Cause No. 195 of 2016. The appellant had allegedly purchased land parcel CENTRAL ALEGO/HONO/1560 from a deceased vendor; after the vendor's death, his widow's estate sold the property to the 4th respondent, who resold it to the 1st respondent. The appellant sought declarations that the title was fraudulently obtained, cancellation of the title, eviction, reimbursement, and mesne profits. The appellant condensed his 13 grounds of appeal into four, chiefly that the trial court fused two distinct legal regimes (civil procedure and succession) and that the succession appeal had already been withdrawn. The respondents urged dismissal. The court framed two issues: whether the ELC had jurisdiction and whether the suit was res judicata; and whether the preliminary objection was properly on record. Applying the predominant purpose test, the court held the suit plainly concerned title to and use of land, within the ELC's exclusive jurisdiction, and that the prior probate proceedings - which dismissed the appellant's summons for revocation of grant on creditor-status grounds - never determined title. Res judicata under Section 7 of the Civil Procedure Act was therefore not made out. On procedure, the court held that a notice of appointment of advocates is not mandatory; what matters is particulars of address of service. The court set aside the ruling, reinstated the suit, remitted the file for hearing on merits, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the suit in the ELC was res judicata given the prior succession cause

Holding

The suit was not res judicata; the probate proceedings concerned a creditor's claim and revocation of grant, not title to land, and the two regimes are distinct

Reasoning

The court delineated the jurisdictions: the ELC has exclusive jurisdiction over title to land under Article 162(2)(b) and Section 13 of the ELC Act, while probate jurisdiction derives from the Law of Succession Act. The prior succession ruling dismissed the appellant's summons for revocation of grant for failure to prove creditor status; it never determined title to the suit property. The authorities relied on by the respondent involved beneficiaries claiming fraud in probate, distinguishable from a claim on title.

p. 4
02

Whether the preliminary objection was properly on record

Holding

The preliminary objection was properly before the court; a notice of appointment of advocates is not mandatory and appearance by counsel was valid under Order 9 Rule 1 of the Civil Procedure Rules

Reasoning

The court found no evidence summons had been served, so there was no basis for entering appearance. The notice of appointment and preliminary objection were filed under Order 9 Rule 1, which permits a party or advocate to act. A notice of appointment is not mandatory except under Order 9 Rule 7; what matters is providing particulars of address of service. The appellant's procedural objections therefore failed.

p. 4

Legal principles established

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  • The ELC and probate courts are governed by separate legal regimes; a claim on title to land is not res judicata of a probate cause
  • Where a controversy straddles courts, the predominant purpose test determines jurisdiction
  • A notice of appointment of advocates is not a mandatory requirement; what matters is particulars of address of service

Court orders

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  1. 1.The decision of the Honourable Magistrate delivered on 28/11/2019 in Siaya PM ELC No. 69 of 2019 is set aside and the suit is reinstated
  2. 2.The lower court file is remitted back to the trial court for determination on merits
  3. 3.Case to be mentioned before the deputy registrar for directions on 15/12/2021
  4. 4.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Civil Procedure ActSections 1A, 1B, 3A and 7
  • Civil Procedure RulesOrders 5, 6 Rule 1, 9 Rule 1 and 9 Rule 7
  • Environment and Land Court ActSection 13
  • Magistrates Courts ActSection 9
  • Law of Succession ActSections 2 and 76

Cases cited (16)

  • The Estate of Emilia Muchora (deceased)
    (2013) eKLR
  • Sunrise Properties Limited v Fifty Investment Ltd & Ano
    (2007) eKLR
  • JMK v KK & LNK
    (2019) eKLR
  • Caroline Mutuku v Amos Kones Mabele & 2 Others
    (2021) eKLR
  • Mary Nyongesa Aloka v Lazarus Sirengo Mukoyani
    (2018) eKLR
  • Abdirahman Abdi also known as Abdirmahman Mohamed Abdi v Safi Petroleum Product Ltd & 6 others
    (2011) eKLR
  • Kamlesh Mansukhal Damji Pattni v Nasir Ibrahim Ali & 2 others
    (2005) eKLR
  • Garden Square Ltd v. Kogo & Ano
    (2003) eKLR
  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Beatrice Wambui Kiarie & 2 others vs Tabitha Wanjiku Ng'ang'a & 9 others
    (2018) eKLR
  • Isaac Kinyua & 3 Others v Hellen Kaigongi
    [2018] eKLR
  • Wilson Mthui Mutungu v Beatrice Gathoni & Another
    (2016) eKLR
  • Republic v Chief Land Registrar & Another
    JR ELC No. 11 of 2010 [2019] eKLR
  • Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another
    [2016] eKLR
  • Iway Africa Limited v Infonet Africa Limited & another
    [2019] eKLR
  • Anti-Counterfeit Agency v Peter Mugucia & another
    [2020] eKLR
On appeal from
Siaya Principal Magistrate's Court (PM ELC No. 69 of 2019)
Siaya PM ELC No. 69 of 2019
Jurisdiction invoked
First appeal under the Environment and Land Court Act; court's jurisdiction founded on Article 162(2)(b) of the Constitution, Section 13 of the Environment and Land Court Act and Section 9 of the Magistrates Courts Act

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, "Nehemiah Mwanda Onyango v Maurice Oduor Abuny & 3 others [2021] KEELC 1235 (KLR)", Case Analysis (2021). Siaya Environment and Land Case Number 10 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1235/eng@2021-11-02

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