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ELCDismissedNot stated in the judgment (Application dated 9th October, 2020)· [2021] KEELC 2770 (KLR)

Onesmus K. Munguti & 2 others v Benard Musyoka Nyaliti & another [2021] KEELC 2770 (KLR)

Environment and Land Court
29 June 2021
MCMBOGO C.G.
1,309 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to lift a stay, ruling that disputes over estate property ownership and alleged fraud must first be resolved in the succession cause.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the Environment and Land Court at Makueni by notice of motion dated 9th October, 2020, seeking to set aside orders staying proceedings in the suit pending the hearing and determination of Makueni High Court Succession Cause No. 252 of 2017 (Estate of the late Manguu Kiluli Kyano), and to have the matter scheduled for hearing. The application was supported by the affidavit of Phanuel Omondi, Advocate for the Plaintiffs. The Applicants argued that the suit property, Plot No. 803 Ngai Adjudication Section, was set to be distributed in the succession cause while ownership was pending before the ELC, which has jurisdiction over land disputes under Article 162 of the Constitution and Section 13 of the ELC Act. The 1st Respondent opposed, contending that the property had been distributed pursuant to a confirmed grant, that the Applicants obtained the grant fraudulently, that only the Probate Court can revoke a grant under Section 76 of the Law of Succession Act, and that a summons for revocation of grant dated 5th September, 2019 was pending in the succession cause. Both parties filed submissions and cited authorities on probate jurisdiction. The court framed the sole question as whether the Applicants had demonstrated sufficient cause to set aside the stay. Perusing the pleadings, the court found both sides were in a tussle over ownership of the suit property and adopted the reasoning in In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, holding that while the ELC has jurisdiction over ownership disputes, the Probate Court must not distribute estate property before its identity and ownership are ascertained, and that allegations of fraud in the confirmation of grant must first be resolved in the succession proceedings. The application was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether sufficient cause was shown to set aside the stay of proceedings pending the succession cause

Holding

The application was dismissed; the Applicants failed to demonstrate sufficient cause to merit the setting aside of the stay order.

Reasoning

The court exercised its discretion under Section 3A of the Civil Procedure Act and examined the pleadings to determine the real controversy. Both parties were in a tussle over ownership of the suit property, which formed part of the estate in Makueni HCSC No. 252 of 2017. Since a summons for revocation of grant alleging fraud was pending before the Probate Court, and the Applicants derived their locus standi from the confirmed grant, the succession proceedings ought to be determined first.

p. 2
02

Primacy of the Probate Court where ownership of estate property is disputed

Holding

The Probate Court will not distribute an estate before the identity and ownership of estate property is ascertained; allegations of fraud in obtaining the confirmed grant must first be resolved there.

Reasoning

Relying on In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, the court held that although the ELC has jurisdiction over land ownership disputes, the Probate Court's primary duty is distribution of the estate, and issues of ownership raised in the succession cause must be resolved before distribution. The Applicants' claim that ownership was beyond the probate court's jurisdiction did not justify lifting the stay.

p. 2

Legal principles established

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  • The Environment and Land Court, not the Probate Court, has jurisdiction to determine questions of ownership of property of the estate
  • Where issues on ownership of estate property are raised in a succession cause, they must be resolved before the property is distributed

Court orders

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  1. 1.The application dated 9th October, 2020 is dismissed
  2. 2.Costs of the application to the 1st Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 162
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Environment and Land Court ActSection 13
  • Law of Succession ActSection 76

Cases cited (4)

  • In re Estate of Solomon Mwangi Waweru (Deceased)
    [2019] eKLR
  • In re Estate of Julius Ndubi Javan (Deceased)
    [2018] eKLR
  • In re Estate of Kuriamunage (Deceased)
    [2019] eKLR
  • In re Estate of Wycliffe Akhabale Oluanda (Deceased)
    [2020] eKLR
Jurisdiction invoked
Article 50(1) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Onesmus K. Munguti & 2 others v Benard Musyoka Nyaliti & another [2021] KEELC 2770 (KLR)", Case Analysis (2021). Not stated in the judgment (Application dated 9th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2770/eng@2021-06-29

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