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ELCStruck OutELC Case of 2015 (Originating Summons dated 12th November, 2015)· [2022] KEELC 1293 (KLR)

Rosa Jeptoo Limo v Richard Kipkemboi Kutto & another [2022] KEELC 1293 (KLR)

Environment and Land Court
23 February 2022
2,317 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a wife's property claim, ruling that disputes depending on whether a marriage exists belong in the matrimonial courts already handling them.

What this practically means

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Executive summary

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The plaintiff, Rosa Jeptoo Limo, sued by originating summons seeking a declaration that she was entitled to a share of Kapsaret/Lemook & Chepkatet Block 1 (Inder) 83, registered in the name of the 1st defendant whom she alleged was her husband under a presumed customary marriage; nullification of the sale and transfer of the property to the 2nd defendant for want of spousal consent under section 93(4) of the Land Registration Act; and a permanent injunction. Both defendants denied the marriage and her contribution. The 2nd defendant asserted he lent the 1st defendant Kshs.3,800,000 and acquired the title upon default. The court framed three issues, the first being jurisdiction. It held the suit was matrimonial in nature, since the plaintiff's claim required prior determination of her alleged marriage to the 1st defendant and of contribution towards acquisition, matters pending in Eldoret CMC Divorce Cause No. 23 of 2015 and Eldoret HCC No. 29 of 2015 before courts of coordinate jurisdiction. Applying Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, the court held it had no jurisdiction over the issues and should not proceed. It found the plaintiff had failed to establish her case on a balance of probabilities, struck out the suit, and directed that each party bear their own costs notwithstanding section 27 of the Civil Procedure Act. The plaintiff was left free to seek conservatory orders in the pending matrimonial property suit.

Key legal issues

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01

Whether the suit is a matrimonial proceeding or an ordinary land claim

Holding

The suit is matrimonial in nature because determination of the plaintiff's marriage to the 1st Defendant is a prerequisite to treating the suit property as matrimonial property

Reasoning

The plaintiff's claim rests on an alleged customary marriage giving rise to a presumption of marriage and on contribution towards acquisition of the property. Determining her entitlement requires first resolving whether a marriage existed, which is the subject of pending divorce and matrimonial property proceedings before other courts.

p. 3
02

Whether the court has jurisdiction given pending related proceedings

Holding

The court lacks jurisdiction because the marriage and division of matrimonial property issues are pending before the Chief Magistrate's divorce court and the High Court

Reasoning

The issues of the plaintiff's marriage, her contribution and whether the suit property is matrimonial property are the subject matter of Eldoret CMC Divorce Cause No. 23 of 2015 and Eldoret HCC No. 29 of 2015 before courts of coordinate jurisdiction. Guided by Owners of the Motor Vessel 'Lillian S', the court must down tools. The plaintiff should have pursued conservatory orders in that forum.

p. 3
03

Whether the plaintiff established her case

Holding

The plaintiff failed to establish her case on a balance of probabilities

Reasoning

Having concluded it lacked jurisdiction, the court found the plaintiff had not established her claim and struck out the suit with each party bearing their own costs.

p. 3

Legal principles established

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  • A court without jurisdiction must down tools at once
  • Where the determination of a land claim requires prior determination of marriage and matrimonial property already pending before another court, the ELC lacks jurisdiction over the claim

Court orders

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  1. 1.The suit is struck out
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration Actsection 93(4)
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Actsection 13
  • Civil Procedure Actsection 27

Cases cited (1)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act No. 19 of 2011

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, "Rosa Jeptoo Limo v Richard Kipkemboi Kutto & another [2022] KEELC 1293 (KLR)", Case Analysis (2022). ELC Case of 2015 (Originating Summons dated 12th November, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1293/eng@2022-02-23

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