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ELCStruck OutNot stated in judgment (Originating Summons dated 28th December 2021)· [2022] KEELC 1131 (KLR)

Mwadum Khalayi Wanyonyi v Patrick Wamalwa Mukanda [2022] KEELC 1131 (KLR)

Environment and Land Court (High Court) at Bungoma
15 February 2022
565 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a widow's case because only a Succession Court in Kenya can distribute a deceased person's estate.

What this practically means

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Executive summary

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This is a ruling by Boaz N. Olao, Judge, delivered at Bungoma on 15th February 2022, striking out an Originating Summons dated 28th December 2021 filed by an Applicant acting in person under Order 37 of the Civil Procedure Rules. The summons arose from ongoing citation proceedings in Kimilili Citation Case No 77 of 2019, in which the Applicant is the Citor and the Respondent the Citee. On 28th November 2019, Hon. G. Adhiambo (Principal Magistrate) had directed the Citee to make full disclosure of the shares of the estate of Hamisi Mukanda Mayeku and to take probate of the estate of Ibrahim Wanyonyi Muganda, failing which the Citor would be at liberty to file a suit. The Citee, in a replying affidavit filed on 4th September 2019, had conceded that he was ready to effect transfer of the deceased husband's share in land parcel KIMILILI/KIMILILI/6814 to the widow and her children. The Judge found the summons unclear, noted that the orders sought fell within the jurisdiction of the Succession Court at Kimilili, and held that the Environment and Land Court, not being a Succession Court, had no jurisdiction to distribute a deceased person's estate. The Applicant was directed to return to the Kimilili Court on 28th February 2022 to pursue her claim, the ruling was to be transmitted to Hon. G. Adhiambo for information and further action, and the suit was struck out. No costs order was made.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over distribution of a deceased person's estate

Holding

The Court has no jurisdiction to distribute a deceased person's estate; such matters fall within the jurisdiction of the Succession Court.

Reasoning

The Applicant's Originating Summons under Order 37 sought orders that essentially concern distribution of the estate of the late Ibrahim Wanyonyi Muganda and transfer of his share in land parcel KIMILILI/KIMILILI/6814. Since distribution of estates is a matter for the Succession Court, this Court could not grant the relief. The pending citation proceedings at Kimilili, including the Citee's written concession, remained the proper avenue.

p. 2
02

Obligation of the subordinate court to enforce its own directions and the Citee's concession

Holding

The trial Magistrate at Kimilili should enforce her earlier directions and the Citee's concession to conclude the dispute.

Reasoning

Hon. G. Adhiambo had on 28th November 2019 directed the Citee to make full disclosure of the shares of the estate and take probate, failing which the Citor could file a suit. The Citee had also deponed in his replying affidavit that he was ready to effect transfer of the deceased's share. The Judge considered the Applicant a lay litigant and directed the Magistrate to hold the Citee to those undertakings.

p. 2

Legal principles established

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  • The Environment and Land Court is not a Succession Court and has no jurisdiction to distribute the estate of a deceased person

Court orders

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  1. 1.Declared that the orders sought in the Originating Summons are essentially within the jurisdiction of the Succession Court at Kimilili
  2. 2.Directed that the trial Magistrate at Kimilili Court follow up on her ruling and the Citee's concession to bring the dispute over KIMILILI/KIMILILI/6814 to a conclusive end
  3. 3.Held that the Court, not being a Succession Court, has no jurisdiction to distribute the estate of a deceased person
  4. 4.Directed the Applicant to return to the Kimilili Court on 28th February 2022 and pursue her claim in Kimilili Citation Case No 77 of 2019
  5. 5.Directed that the ruling be transmitted to Hon. G. Adhiambo (Principal Magistrate) for information and further action
  6. 6.Struck out the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 37
Jurisdiction invoked
Order 37 of the Civil Procedure Rules; court found no jurisdiction as it is not a Succession Court

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, "Mwadum Khalayi Wanyonyi v Patrick Wamalwa Mukanda [2022] KEELC 1131 (KLR)", Case Analysis (2022). Not stated in judgment (Originating Summons dated 28th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1131/eng@2022-02-15

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