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ELCDismissedOrigination Summons dated 30/11/2020, filed 04/12/2020 (Kisumu ELC)· [2021] KEELC 1865 (KLR)

Franco Stephen Opanga v Daniel Milton Opanga; Barclays Bank of Kenya & 2 others (Interested Parties) [2021] KEELC 1865 (KLR)

Environment and Land Court
30 September 2021
AOANTONY OMBWAYO
2,265 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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What this practically means

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Executive summary

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Franco Stephen Opanga sued Daniel Milton Opanga by originating summons dated 30/11/2020 seeking declarations concerning the property KISUMU/MUNICIPALITY/BLOCK 7/183. He asked the Court to determine whether the estate of the late Christopher Oboka Opanga had been distributed, whether the suit property devolved to him and the late Paul Opanga, whether the property was jointly owned so that on Paul Opanga's death the doctrine of survivorship vested it solely in him, whether the defendant, as administrator of the two estates, had any legal claim to it, and whether the interested parties should release the title, pay rents directly to him and register the title in his name. A preliminary objection was raised on jurisdiction and non-joinder. Although the parties filed a consent on 09/08/2021 regulating the distribution of rental income, which the Court read as submission to its jurisdiction, the Court nevertheless proceeded to decide jurisdiction, applying theOwners of the Motor Vessel 'Lilian S' principle that jurisdiction is everything. It found that the plaintiff's questions turned on the distribution of a deceased's estate under the certificate of confirmation of grant in Succession Cause No. 109 of 2015, and that a ruling in Succession Cause No. 7 of 2019 had already held that the suit property could only be distributed in the estate of Christopher Obuga Opanga, in whose name it was registered. Such disputes fall outside section 13 of the Environment and Land Court Act. The preliminary objection was upheld, the suit dismissed with costs to the defendant, and the parties directed to take the consent to the succession proceedings.

Key legal issues

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01

Whether the ELC has jurisdiction over questions of joint ownership and survivorship arising from distribution of a deceased's estate

Holding

The Court lacks jurisdiction; such questions can only be answered by the court seized of the succession proceedings, in this case Succession Cause No. 109 of 2015 in the High Court at Kisumu

Reasoning

The plaintiff's questions turn on the certificate of confirmation of grant in Succession Cause No. 109 of 2015 and on the distribution of the estate of the late Christopher Oboka Opanga, in whose name the suit property is registered. A ruling in Succession Cause No. 7 of 2019 (Estate of Paul Opanga) had already held that the suit property can only be distributed in the estate of Christopher Obuga Opanga. The proper forum is therefore the succession court, where the plaintiff should have filed an application.

p. 3
02

Effect of the consent order of 09/08/2021 on rental income

Holding

The rental income held in court and distributed under the consent forms part of the estate of the deceased, and parties should move the consent to the succession proceedings

Reasoning

Clause 4 of the consent provided that its terms cease upon judgment. Although the Court read the consent as submission to its jurisdiction, it nonetheless found that the rental funds form part of the deceased's estate and should be dealt with in the pending succession proceedings pending determination of entitlement by virtue of succession.

p. 3

Legal principles established

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  • Jurisdiction must be determined first whenever it is raised, as a court without jurisdiction must down its tools
  • Disputes arising from the distribution of property in succession proceedings of the estate of a deceased person do not fall within the jurisdiction of the Environment and Land Court under section 13 of the Environment and Land Court Act

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The suit is dismissed with costs to the defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Actsection 4
  • Environment and Land Court Actsection 13(1)
  • Environment and Land Court Actsection 13(2)(a)-(e)

Cases cited (1)

  • The Owners of the Motor Vessel Lilian 'S' -vs- Caltex Kenya Limited
    [1989] KLR 1
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with sections 4 and 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, "Franco Stephen Opanga v Daniel Milton Opanga; Barclays Bank of Kenya & 2 others (Interested Parties) [2021] KEELC 1865 (KLR)", Case Analysis (2021). Origination Summons dated 30/11/2020, filed 04/12/2020 (Kisumu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1865/eng@2021-09-30

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