Victorina Nanjala Wekesa v Cleophas W Waswa & another [2021] KEELC 3083 (KLR)
The bottom line
#Kenya's Environment and Land Court can hear matrimonial property disputes, so long as the disagreement is actually about land.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over matrimonial property disputes relating to land
The ELC has jurisdiction; the Matrimonial Property Act has not vested any particular court with jurisdiction nor taken away the ELC's jurisdiction over matrimonial disputes that relate to land
Sections 13(1) and 13(2)(e) of the Environment and Land Court Act and Article 162(2)(b) confer jurisdiction over all disputes relating to land. The Matrimonial Property Act designates no court and defines matrimonial property to include the matrimonial home. The plaintiff's claim that the sale of land comprising the matrimonial home is void plainly relates to land, so the ELC is seized of the dispute.
Status of Mukunya J's remarks on lack of jurisdiction
Those remarks were obiter dictum because the Judge nonetheless considered and dismissed the injunction application on the merits, thereby assuming jurisdiction
A court without jurisdiction should simply down its tools and transfer the matter. By going on to evaluate whether the plaintiff had met the Giella threshold and dismissing the application, Mukunya J assumed jurisdiction; his jurisdictional comments were therefore unnecessary to the decision and not precedential.
Whether the suit should be split between two courts
No; a dispute can only be handled in one Court, and this Court has the necessary jurisdiction
Counsel's suggestion that the marriage issue be tried in the High Court and the land issue in the ELC was rejected as cumbersome, unprocedural and alien to the jurisdiction. The existence of the marriage was not even in issue, having been conceded in the 1st defendant's replying affidavit.
Legal principles established
#- So long as a dispute relates to land, the Environment and Land Court is vested with jurisdiction even where the land comprises matrimonial property
- A judge cannot sit in appeal over, nor allow re-agitation of, a matter determined by a court of concurrent jurisdiction
- Where a court lacking jurisdiction dismisses an application on the merits, its jurisdictional comments are obiter dictum
Court orders
#- 1.The plaintiff's Notice of Motion dated 14th January 2021 is dismissed
- 2.No orders as to costs
- 3.The dismissal of the second limb of the application dated 5th July 2017 shall stand
- 4.Mention on 14th June 2021 for further directions with regard to the first limb of the application dated 5th July 2017 (leave to amend the plaint)
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Sections 13(1) and 13(2)(e) of the Environment and Land Court Act; Section 150 of the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victorina Nanjala Wekesa v Cleophas W Waswa & another [2021] KEELC 3083 (KLR)", Case Analysis (2021). ELC Case of 2017 (Bungoma) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3083/eng@2021-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.