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ELCDismissedELC No. 20 of 2017 (O.S.)· [2021] KEELC 1247 (KLR)

Lucy Jebet Kiptoo v Kiptoo Kirui [2021] KEELC 1247 (KLR)

Environment and Land Court
28 October 2021
MOM.C. Oundo
6,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By an Originating Summons under Order 37 of the Civil Procedure Rules and the Matrimonial Property Act, Lucy Jebet Kiptoo sought a declaration that LR Kericho/Kapsaos/175 was matrimonial property, its joint registration in her name and that of her husband Kiptoo Kirui upon completion of succession, annulment of sales of portions of the land made after she lodged a caution, and eviction of the purchasers, including land allocated to the Defendant's second wife. The parties married in 1969 under Kipsigis customary law and later solemnised the marriage in church; the Defendant later took a second wife in 2015 and settled her on the suit land. The evidence established that the suit land was registered in the name of the Defendant's deceased father, Kipsoi Kirui, that no succession proceedings had been commenced, and that no grant of representation had been obtained. Framing two issues - jurisdiction and whether the suit should be dismissed - the court held that under Section 17(1) of the Matrimonial Property Act the ELC has no jurisdiction over declarations of matrimonial property rights, which lie in the Family Division of the High Court. Further, since the Defendant was not shown to be the legal representative of the deceased's estate, he lacked locus standi to be sued, rendering the proceedings a nullity. Applying the Lilian S 'Lilian S' principle that jurisdiction is everything, the court dismissed the suit with costs to the Defendant.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to declare the suit land matrimonial property

Holding

The court held it lacked jurisdiction over matrimonial property disputes; such declarations lie with the Family Division of the High Court under Section 17 of the Matrimonial Property Act

Reasoning

Article 162(3) and Section 13 of the Environment and Land Court Act confer jurisdiction over land and environment disputes but contain no provision for matrimonial disputes. Section 17 of the Matrimonial Property Act provides the mechanism for declarations of rights to contested property between spouses, and applications under it may be made as part of a matrimonial cause. The court concluded that the Family Division of the High Court is clothed with the requisite jurisdiction.

p. 7
02

Whether the Defendant had capacity (locus standi) to be sued over land registered in the name of his deceased father

Holding

The Defendant, not being shown to be the legal representative of the deceased's estate, lacked locus standi to be sued, rendering the proceedings a nullity

Reasoning

The suit land was registered in the name of Kipsoi Kirui (deceased). The Plaintiff did not demonstrate that the Defendant was the legal representative of the estate, produced no transmission documents, and had taken no citation proceedings. Citing Court of Appeal authority on locus standi, the court held the issue is cardinal and its absence equates to proceedings that are null and void, especially in matters involving a deceased's estate with several beneficiaries.

p. 8
03

Whether the suit should be dismissed

Holding

The suit was dismissed as dead on arrival since it lacked both jurisdiction and a competent defendant

Reasoning

Relying on the Owners of the Motor Vessel 'Lilian S' v Caltex, the court held that once it finds it is without jurisdiction it must down tools. The suit was defective ab initio for want of jurisdiction over the matrimonial property claim and for the Defendant's lack of capacity to be sued over the deceased's estate. No remedy could save it, and it was dismissed with costs.

p. 8

Legal principles established

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  • Locus standi is a point of law that goes to the root of a suit; its absence renders the suit fatally defective and the proceedings a nullity
  • Where a cause of action relates to a deceased's land and no grant of representation has been obtained, the proper party to sue is the legal representative of the estate, not the heir personally
  • By virtue of Section 17(1) of the Matrimonial Property Act, the Environment and Land Court has no jurisdiction to entertain declarations of rights to matrimonial property, which lie in the Family Division of the High Court

Court orders

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  1. 1.The Plaintiff's Originating Summons is dismissed with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 37 rules 8 and 14
  • Matrimonial Property Act, 2013Sections 6(1), 7, 9, 12(1), 17
  • Land Registration Act No. 3 of 2012Sections 93, 107
  • Environment and Land Court ActSections 13(1), 13(2), 13(3)
  • Law of Succession ActSection 45
  • Constitution of Kenya, 2010Articles 42, 69, 70, 162, 162(2)(b), 162(3)

Cases cited (5)

  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Virginia Edith Wamboi Otieno vs Joash Ochieng Ougo & Another
    [1987] eKLR
  • Morjaria v Abdalla
    [1984] KLR 490
  • Alfred Njau & Others v City Council of Nairobi
    [1982-88] 1 KAR 229
  • The Owners of the Motor Vessel "Lilian S" vs Caltex (Kenya) Ltd
    [1989] KLR 1
Jurisdiction invoked
Article 162 of the Constitution and Section 13 of the Environment and Land Court 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, "Lucy Jebet Kiptoo v Kiptoo Kirui [2021] KEELC 1247 (KLR)", Case Analysis (2021). ELC No. 20 of 2017 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1247/eng@2021-10-28

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