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ELCDismissedNot stated in the extract· [2022] KEELC 1195 (KLR)

Virginia Wamuhu Kamiti & another v Lydiah Nyambura Mahinda & 5 others [2022] KEELC 1195 (KLR)

Environment and Land Court
24 February 2022
OAO. A. Angote
5,847 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear land title disputes involving a deceased person's estate, dismissing attempts to halt the case.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (O. A. Angote, J) delivered a ruling on the 1st Defendant's Notice of Preliminary Objection dated 29th August 2018 and the 4th Defendant's Notice of Motion dated 5th March 2018 in the Plaintiffs' suit seeking declarations of ownership of Dagoretti/Kangemi/1738 and 1739, nullification of transfers, rectification of the register, injunction and eviction. The 1st Defendant objected that the suit was a succession dispute belonging to the High Court under Section 47 of the Law of Succession Act and that it was sub judice Nakuru Succession Cause No. 331 of 2015. The 4th Defendant sought striking out of the suit against it on grounds it was a bona fide purchaser for value without notice from the 3rd Defendant, that no justiciable cause existed against it, and that the Plaintiffs were guilty of laches. The court framed three issues. Relying on the concurrent jurisdiction line of authority, including Salome Wambui Njau and In Re Estate of Alice Mumbua Mutua, the court held the dispute concerned title to land under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, since the properties had been sold to third parties and the Plaintiffs sought to impeach titles under Section 26 of the Land Registration Act rather than seek distribution of an estate. The sub judice objection failed as it was not pleaded and the succession cause pleadings were not produced. The 4th Defendant was held to be a necessary party whose bona fide purchaser claim required trial, and no laches was established. Both applications were dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the ELC has jurisdiction over a claim to impeach titles to land arising from the estate of the deceased 1st Defendant

Holding

The court has jurisdiction; the suit is a title-to-land dispute, not a succession dispute, and the suit properties are outside the succession cause having been sold to third parties

Reasoning

The Plaintiffs claim as owners by inheritance from their father, not as beneficiaries of the deceased 1st Defendant's estate, and seek cancellation of titles under Section 26 of the Land Registration Act. Third-party disputes over estate property are resolved outside the succession framework through the Civil Procedure Act, and a bona fide purchaser defence involves the law on title to land, which the ELC is competent to determine.

p. 6
02

Whether the suit is sub judice Nakuru High Court Succession Cause No 331 of 2015

Holding

The objection fails; sub judice was not pleaded and the pleadings in the succession cause were not produced

Reasoning

Section 6 of the Civil Procedure Act requires the same parties litigating under the same title over the same subject matter. The 1st Defendant did not plead sub judice in its defence and did not place the succession cause pleadings before the court, so the court could not make a determination; in any event the succession cause concerned distribution of the estate, not the alleged fraudulent registrations.

p. 7
03

Whether the 4th Defendant is a necessary party

Holding

Yes; it admitted purchasing a portion of Dagoretti/Kangemi/1738 and its bona fide purchaser claim can only be tested at trial

Reasoning

Under Order 1 Rule 3 of the Civil Procedure Rules, all persons against whom relief is alleged arising from the same transaction may be joined. The 4th Defendant admits occupation of part of the suit property, and any determination on proprietorship will affect its claim of ownership. Whether it meets the elements of a bona fide purchaser for value is a matter for trial.

p. 7

Legal principles established

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  • In matters of succession disputes touching on land, the Environment and Land Court and the High Court have concurrent jurisdiction, and the suited forum depends on the circumstances of each case
  • Disputes between a deceased's estate and third parties need not be determined within the succession cause; they are resolved through the Civil Procedure Act framework and the decree made available to the probate court
  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
  • Sub judice requires the same parties or parties litigating under the same title and the same subject matter in both suits

Court orders

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  1. 1.The 1st Defendant's Notice of Preliminary Objection dated 29th August, 2018 is dismissed
  2. 2.The 4th Defendant's Notice of Motion Application dated 5th March, 2018 is dismissed
  3. 3.Costs of both applications awarded to the Plaintiffs

Authorities

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Legislation

  • Constitution of Kenya, 2012Articles 162(2)(b), 165(5)
  • Law of Succession ActSections 47, 71
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 1 Rule 3
  • Environment and Land Court ActSection 13(2)
  • Land Registration ActSection 26
  • Probate and Administration RulesRule 41(3)
  • Limitation of Actions ActSection 26

Cases cited (21)

  • Salome Wambui Njau (Suing as an Administratrix of the Estate of Peter Kiguru Njuguna (Deceased)) vs Caroline Wangui Kiguru
    [2013] eKLR
  • Mecklina Kirigo M'murithiu vs Mary Gantuku Simukiri & 2 others
    [2016] eKLR
  • Muturi Investments Ltd vs National Bank of Kenya
    [2006] eKLR
  • Thiba Mining Hydro Co Ltd vs Joseph Karu Ndigwa
    (2013) eKLR
  • Charo vs Republic
    [2015] eKLR
  • Owners of the Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank and 2 others
    [2012] eKLR
  • John Kimani Njenga vs Margaret Wanjiru Kanyiri & 2 others
    [2015] eKLR
  • Republic vs Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others
    [2017] eKLR
  • ASL Credit Limited vs Abdi Basid Sheikh Ali & another
    [2019] eKLR
  • Erinyit Eporon Nguruka & 4 others v National Land Commission & 6 others
    [2019] eKLR
  • Weston Gitonga & 10 others vs Peter Rugu Gikanga & Another
    [2017]
  • Katende vs Haridar and Company Limited
  • Lawrence P. Mukiri vs Attorney General & 4 Others
    (2013) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd. vs West End Distributors
    (1969) EA 696
  • Aviation & Allied Workers Union Kenya vs Kenya Airways Ltd & 3 Others
    [2015] eKLR
  • Oraro v Mbaja
    [2005] eKLR
  • Kalpana H Rawal & 2 others vs Judicial Service Commission & 2 others
    [2016] eKLR
  • Ocheja Emmanuel Dangana vs Hon. Atai Aidoko Aliusman & 4 Others
    Supreme Case No. 11 of 2012
  • Mbula Muoki Ndolo & Another vs Kenya Power and Lighting Company Limited
    [2017] eKLR
  • In Re Estate of Alice Mumbua Mutua (Deceased)
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with 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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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Virginia Wamuhu Kamiti & another v Lydiah Nyambura Mahinda & 5 others [2022] KEELC 1195 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1195/eng@2022-02-24

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