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ELCAllowedELC Case of 2015 (Nairobi)· [2021] KEELC 4012 (KLR)

Guy Spencer Elms (suing as the personal representative of the Estate of Roger Bryan Robson (Deceased) v Agnes Kariuki Kagure [2021] KEELC 4012 (KLR)

Environment and Land Court
11 March 2021
LKL. Komingoi
2,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court paused a land ownership dispute until a separate succession case over the same properties is decided first.

What this practically means

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Executive summary

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This was a notice of motion dated 10th May 2019 by the plaintiff, Guy Spencer Elms, seeking a stay of the suit pending the hearing and determination of High Court Succession Cause No. 955 of 2013, In the matter of the Estate of Roger Bryan Robson (Deceased). The suit, commenced by plaint dated 4th February 2015, sought a declaration that the plaintiff, as executor of the deceased, is the lawful owner of LR No. 2327/10 and LR No. 2327/117, while the defendant claimed ownership having purchased the properties from the deceased in 2011. The plaintiff argued that the ownership of the suit properties was directly and substantially in issue in the succession cause, where the defendant had filed an objection, protest and application to revoke the grant, and that a stay was necessary to avoid contradictory decisions by courts of concurrent jurisdiction, invoking section 6 of the Civil Procedure Act. The defendant opposed, arguing inordinate delay, mala fides, that the succession matter did not cover the suit parcels, and that the family court had directed parties to litigate ownership before the Environment and Land Court. The court found the plaintiff's averments uncontroverted, that ownership of the properties was in issue in the succession cause, and that no prejudice would befall the defendant. Applying section 6 and the conditions in Republic v Registrar of Societies Exparte Kirima (as quoted in ASL Credit), the court stayed the suit and all proceedings pending the succession cause, with costs of the application to await the outcome of the main suit.

Key legal issues

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01

Whether the suit should be stayed pending determination of High Court Succession Cause No. 955 of 2013

Holding

The application was allowed; the suit and all proceedings were stayed pending the hearing and determination of the succession cause, as ownership of the suit properties was directly and substantially in issue in the previously instituted succession cause.

Reasoning

The plaintiff's uncontroverted averments showed that the defendant lodged a protest and an application to revoke the grant in the succession cause, raising the question whether the suit properties form part of the estate. Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between parties litigating under the same title. Staying the suit would save judicial time and avoid contradictory decisions, and no prejudice would be occasioned to the defendant.

p. 3

Legal principles established

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  • A court shall not proceed with the trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties pending before a court with jurisdiction to grant the relief claimed (section 6 Civil Procedure Act).
  • The conditions precedent for a stay under section 6 are: the matter in issue must be directly and substantially in issue in the earlier suit; the parties must be the same or claiming under the same title; and the earlier suit must be pending in a court with jurisdiction to grant the relief claimed.

Court orders

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  1. 1.That this suit and all proceedings herein be and are hereby stayed pending the hearing and determination of High Court Succession Cause No. 955 of 2013; In the matter of the Estate of Roger Bryan Robson (Deceased).
  2. 2.That costs of this application do await the outcome of the main suit.

Authorities

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Legislation

  • Environment and Land Court ActSections 3, 13, 19
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 6, 63(e)
  • Probate and Administration RulesRule 41(3)

Cases cited (7)

  • ASL Credit Limited vs Abdi Basid Sheikh Ali & Another
    [2019] eKLR
  • Republic vs Registrar of Societies, Kenya & 2 Others Exparte Moses Kirima & 2 Others
    [2017] eKLR
  • Thika Min Hydro Co. Ltd vs Josphat Karu Ndwiga
    [2013] eKLR
  • A.B & Another vs R.B
    [2016] eKLR
  • Charles Njeru Mugane & Another vs Henry Ndwiga Kiura
    (2019) eKLR
  • National Oil Corporation of Kenya vs Real Energy Ltd
    [2017] eKLR
  • In re Estate of Alice Mumbua Mutua (Deceased)
    [2017] eKLR
Jurisdiction invoked
Sections 3, 13 and 19 of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure 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, "Guy Spencer Elms (suing as the personal representative of the Estate of Roger Bryan Robson (Deceased) v Agnes Kariuki Kagure [2021] KEELC 4012 (KLR)", Case Analysis (2021). ELC Case of 2015 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4012/eng@2021-03-11

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