Beatrice Atieno Ongadi v National Land Commission & 5 others [2021] KEELC 4079 (KLR)

Order 51 Rule 14 of the Civil Procedure Rules permits a respondent to oppose an application by a notice of preliminary objection, a replying affidavit and/or grounds of opposition, the election lying with the respondent. The objection here was founded solely on jurisdiction, a threshold question of law best taken at inception, as confirmed in Mukisa Biscuits, Joho, and Kakuta Maimai Hamisi. It therefore required no affidavit evidence and was properly before the court.

Article 162(2)(b) confers on the ELC jurisdiction over disputes relating to the environment and the use, occupation and title to land, detailed in section 13 of the Environment and Land Court Act. However, the appellant's own pleadings showed the dispute centres on an allegedly fraudulent grant of letters of administration in Migori PMC Succession Cause No. 383 of 2007 and resulting subdivision of estate land. The remedy lies under section 76 of the Law of Succession Act before the succession court, not the ELC.

The court noted that the 2nd appellant (administrator) and the respondent are parties in the pending Migori succession cause involving the same subject matter. Continuing the appeal would contravene section 6 of the Civil Procedure Act on subjudice and the interests of justice. The court accordingly stayed the entire memorandum of appeal/reference.