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ELCDismissedNot stated in the extract (Nairobi ELC suit; notice of motion dated 30/5/2018)· [2021] KEELC 4655 (KLR)

Sophinah Kalondu Mbiti v Arun Mahendra Adalja & 3 others [2021] KEELC 4655 (KLR)

Environment and Land Court
20 January 2021
1,767 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (B M Eboso J) on a notice of motion dated 30/5/2018 by the plaintiff, Bindi Vibha Adalja, in a suit disputing ownership of ten immovable properties, some registered jointly with the late Dr Mahendra Krishnalal Adalja. On 1/2/2018 Obaga J had ordered preservation of four of the properties through estate managers pending trial or probate proceedings, and restrained the plaintiff from interfering with the 1st defendant's quiet possession of a flat. The plaintiff sought stay of those orders and transfer of the suit to the Family Division for consolidation with High Court Succession Cause No 315 of 2018, contending that a will entitled her to the properties and that consolidation would avoid conflicting decisions. The 1st defendant opposed, arguing the applicant was in contempt of the preservation order, that the estate had no executors or administrators, and that the properties did not form part of the estate. The 2nd to 4th respondents likewise opposed. The court framed two questions: whether stay was warranted, and whether transfer was appropriate. On the first, it held the stay issue had already been decided by the Court of Appeal in Nairobi Civil Appeal No 52 of 2018, which upheld Obaga J's orders, and it could not review that binding judgment. On the second, it held the dispute concerns title to land within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act; the properties were pleaded not to form part of the estate and the counter-claim was personal, so transfer to the Succession Court was inappropriate. The court also held that contempt could not be founded on grounds of opposition. The application was rejected in its entirety on 20 January 2021.

Key legal issues

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01

Whether a case was made for stay of the orders of 1/2/2018

Holding

No stay could be granted; the Court of Appeal had already disposed of the stay issue in Nairobi Civil Appeal No 52 of 2018 by upholding Obaga J's orders

Reasoning

The applicant had appealed the 1/2/2018 orders to the Court of Appeal, which fully heard and dismissed the appeal, holding the preservation orders merited. Prayers 1 and 2 of the motion therefore raised an issue already decided with binding effect. The trial court could not review or craft orders overturning the appellate judgment.

p. 2
02

Whether the suit should be transferred to the Family Division and consolidated with the Succession Cause

Holding

Transfer refused; the suit concerns title to land within the ELC's jurisdiction, and the affected properties were pleaded not to form part of the deceased's estate

Reasoning

The court surveyed its jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, limited to environment and title to land. The respondents and parties agreed the properties subject to the preservation order were not part of the estate; the suit and counter-claim were personal, not on behalf of the estate, which had no executors or administrators. The proper forum for title disputes is the ELC.

p. 2
03

Contempt of the 1/2/2018 order raised by the 1st defendant

Holding

The contempt issue could not be determined on grounds of opposition; the 1st defendant was at liberty to bring a formal application

Reasoning

The 1st defendant argued the applicant did not deserve audience as she was in contempt of the preservation order. The court held that grounds of opposition are not evidence of contempt and the proper course is a formal application.

p. 2

Legal principles established

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  • A subordinate court cannot review or overturn the binding judgment of the Court of Appeal on an issue the appellate court has decided
  • The Environment and Land Court has exclusive competence over disputes relating to title to land, which cannot be transferred to the Succession Court where the properties are pleaded not to form part of the estate
  • Grounds of opposition do not constitute evidence of contempt; contempt must be raised by a formal application

Court orders

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  1. 1.The plaintiff's application dated 30/5/2018 is rejected
  2. 2.The 1st defendant is at liberty to bring a formal application on the issue of contempt of the order of 1/2/2018

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court 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, "Sophinah Kalondu Mbiti v Arun Mahendra Adalja & 3 others [2021] KEELC 4655 (KLR)", Case Analysis (2021). Not stated in the extract (Nairobi ELC suit; notice of motion dated 30/5/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4655/eng@2021-01-20

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