Susan Tapen Kenya v Clement Achachi [2021] KEELC 3617 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can decide divorce-related land ownership disputes, dismissing an attempt to block a widow's claim over matrimonial property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Environment and Land Court has jurisdiction to hear and determine the instant suit where the plaintiff's claim includes a declaration that the suit property is matrimonial property
Key legal issues
#Whether the Environment and Land Court lacks jurisdiction over a suit seeking a declaration that suit land is matrimonial property
The court has jurisdiction; the claim relates to title, use and occupation of land under Article 162(2)(b) and Section 13 of the ELC Act.
The ELC's jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act is very broad, covering disputes relating to environment, title, and use and occupation of land. The plaintiff's prayers for a declaration that the suit land is matrimonial property and for transfer of the land raise issues of use, occupation and title to land. Relying on BWM v JMC, the substratum of the dispute is ownership of land, and the Matrimonial Property Act does not specify the court for such disputes.
Legal principles established
#- The jurisdiction of the Environment and Land Court is broad: as long as a claim relates to environment, title, or use and occupation of land, the court has jurisdiction, even where the claim also invokes matrimonial property concepts.
- A prayer for a declaration that suit land is matrimonial property raises issues of use and occupation of land within the ELC's jurisdiction.
- Where the substratum of a dispute is ownership of land, the ELC has jurisdiction notwithstanding a matrimonial property label, since the Matrimonial Property Act does not designate a specific court for such disputes.
Court orders
#- 1.The application dated 22/2/2021 is dismissed
- 2.The preliminary objection dated 23/2/2021 is dismissed
- 3.Costs of the application awarded to the plaintiff
- 4.The suit to be mentioned on 29th April 2021 for issuance of a hearing date
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (Act No. 19 of 2011); application brought under Section 13 of the ELC Act, Article 162 of the Constitution, Sections 6 & 17 of the Matrimonial Property Act and Order 40 Rule 6 of the Civil Procedure Rules
Relief refused
#Discharge of the interlocutory injunction issued on 14/12/2018 and confirmed on 28/3/2019, and vacation of the orders granting it
The court found it has jurisdiction over the suit; the application was dismissed
A declaration that the court lacks jurisdiction to entertain the suit on the ground that it is governed by the Matrimonial Property Act
The claim relates to title, use and occupation of land, within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act
Striking out of the suit and condemnation of the plaintiff to costs of the application and the suit
The suit should proceed to hearing on its merits
Costs
The application and preliminary objection were dismissed with costs to the plaintiff.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that there would be no ground upon which to hold that this court has no jurisdiction to hear and determine the present suit.
as long as a claim relates to environment, title and use and occupation of land, the court verily has jurisdiction over such a matter
the substratum of the dispute at hand is the ownership of the suit land.
Consequently the application dated 22/2/2021 and the preliminary objection dated 23/2/2021 are both hereby dismissed with costs to the plaintiff.
Issues in the judgment
#The judgment is incomplete/omits the case title, case number and full party names, making identification of the suit impossible from the text alone.
The applicant's submissions date (23/3/2021) appears inconsistent with the respondent's replying affidavit and submissions both dated 19/3/2021, with submissions said to have been filed before the replying affidavit despite the court ordering written submissions.
The judgment contains typographical errors, including 'bought' for 'brought', 'Act no' left incomplete, and duplicated lettering ('(g)' appearing twice) in the quotation of Section 13(7) of the ELC Act.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Tapen Kenya v Clement Achachi [2021] KEELC 3617 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3617/eng@2021-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.