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ELCStruck OutNyeri MCL & E Appeal (arising from Nyeri MCL & E Case No. 81 of 2019)· [2022] KEELC 709 (KLR)

Rose Watere Ndumbi v James Kihungi Kahiga & another [2022] KEELC 709 (KLR)

Environment and Land Court
24 March 2022
JOJ. O. Olola
1,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it cannot decide burial disputes where no one disputes who owns the land involved.

What this practically means

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Executive summary

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By a Notice of Motion dated 15th April 2021, Rose Watare Ndumbi sought a stay of execution of a Ruling delivered in Nyeri MCL & E Case No. 81 of 2019 pending determination of her appeal, together with directions to preserve the subject matter. The application was opposed by the Respondents, led by James Kihungi Kahiga, who filed a Notice of Preliminary Objection dated 25th June 2021 contending that the appeal was defective ab initio, that the Appellant claimed no proprietary interest in the suit parcel Kabaru/Ngonde/Block 6/(Ngatia)/44, and that the dispute belonged before the Probate and Family Division of the High Court. The Appellant countered that since the dispute involved interment on the suit parcel, it touched on land and fell within Section 13 of the Environment and Land Court Act. The Court, per J. O. Olola J, examined the pleadings from the subordinate court, which showed the Appellant's suit sought to restrain burial of Charles Muriithi Kahiga on the parcel based on her claim to be his wife under Kikuyu customary law, and her alternative prayers sought participation in burial arrangements and recognition as his wife. Holding that the Appellant claimed no rights or interest over the land and that there was no dispute over ownership of the parcel, the Court found the matter a pure burial dispute outside Section 13 jurisdiction. The preliminary objection succeeded; the appeal and the Motion were struck out, with each party bearing their own costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over burial disputes

Holding

The Court lacks jurisdiction where the dispute does not fall within Section 13 of the Environment and Land Court Act; a burial dispute premised on a claim to be a wife of the deceased, without any claim of proprietary interest in the land, is outside the Court's jurisdiction

Reasoning

The Court examined the plaint and application filed in the subordinate court and found the Appellant sought to restrain interment not on account of any rights or interest over the land, but on the basis that she was the deceased's wife under Kikuyu customary law. Since there was no dispute over ownership of the parcel, the dispute was not among those contemplated under Section 13 and was a pure burial dispute.

p. 2
02

Effect of want of jurisdiction on the appeal and application

Holding

Both the appeal and the motion were struck out on the preliminary objection

Reasoning

Having found the dispute fell outside its statutory jurisdiction, the Court upheld the Respondents' preliminary objection and struck out both the Memorandum of Appeal and the Notice of Motion seeking stay of execution and preservation orders.

p. 2

Legal principles established

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  • Where a dispute is essentially a burial dispute involving no dispute over ownership or interest in land, the Environment and Land Court lacks jurisdiction notwithstanding that burial on a parcel of land is in issue

Court orders

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  1. 1.The Appeal is struck out
  2. 2.The Notice of Motion dated 15th April 2021 is struck out

Authorities

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Legislation

  • Environment and Land Court Act, 2011Section 13(1), (2) and (4)
  • Constitution of Kenya, 2010Article 162(2)(b)
On appeal from
Nyeri Chief Magistrate's Court (MCL & E Case No. 81 of 2019)
81 of 2019
Jurisdiction invoked
Section 13 of the Environment and Land Court Act, 2011 read with Article 162(2)(b) of the Constitution

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, "Rose Watere Ndumbi v James Kihungi Kahiga & another [2022] KEELC 709 (KLR)", Case Analysis (2022). Nyeri MCL & E Appeal (arising from Nyeri MCL & E Case No. 81 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/709/eng@2022-03-24

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