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ELCStruck OutNot stated in judgment (plaint dated 25/11/2019)· [2022] KEELC 1904 (KLR)

NWN v LNM (Environment & Land Case 51 of 2019) [2022] KEELC 1904 (KLR)

Environment and Land Court
21 January 2022
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a wife's claim over family land because matrimonial property disputes belong in the High Court, not the Environment and Land Court.

What this practically means

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Executive summary

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The Defendant raised a preliminary objection at paragraph 8 of his statement of defence dated 7th November 2020, contending that the Environment and Land Court lacks jurisdiction to determine claims based on matrimonial property, which under Section 17 of the Matrimonial Property Act, 2013 lies in the High Court and subordinate courts. The objection was agreed by consent to be disposed of by written submissions. The Plaintiff countered that under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, the ELC has jurisdiction over matrimonial property disputes in so far as they relate to land, citing authorities establishing concurrent jurisdiction. The court first confirmed the objection raised a pure point of law per Mukisa Biscuit, and reiterated that jurisdiction is everything per the Lillian S and Samuel Kamau Macharia cases. While acknowledging that the ELC can hear matrimonial property disputes involving land, the court distinguished the present claim: the plaintiff, the defendant's wife, sought a declaration that the defendant holds parcel Inoi/Mbeti/xxx in trust for herself and their six children. Applying the Supreme Court's elements of customary trust in Isack M'inanga Kieba, the court held a wife does not belong to the same family, clan or group as her husband, so her claim could not be a customary trust claim but fell under Section 17 of the Matrimonial Property Act, within the High Court's jurisdiction. The preliminary objection was upheld and the suit struck out with costs to the Defendant.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over matrimonial property claims relating to land

Holding

Although ELC jurisdiction under Section 13 covers all disputes relating to environment and land, a claim that is in substance one for division or declaration of rights over matrimonial property under Section 17 of the Matrimonial Property Act falls to the High Court, and a spouse is not a member of the same family, clan or group as her husband for purposes of customary trust; the ELC therefore lacks jurisdiction here

Reasoning

The court acknowledged that matrimonial property disputes may be heard by courts with concurrent jurisdiction where they relate to land. However, applying the Supreme Court's elements of customary trust in Isack M'inanga Kieba, it held that a wife does not come from the same family, clan or group as her husband and so cannot claim family/clan land under customary trust. Her claim was thus a Section 17 Matrimonial Property Act claim for the High Court, not a land dispute for the ELC.

p. 3
02

Whether the Preliminary Objection was a pure point of law

Holding

Yes - the objection to jurisdiction raises a pure point of law which, if successful, disposes of the suit

Reasoning

Applying the Mukisa Biscuit definition, the court found the objection was in the nature of a demurrer, argued on the assumption that the facts pleaded by the plaintiff were correct, and did not require ascertainment of facts or exercise of judicial discretion. It therefore proceeded to determine it as a threshold issue.

p. 2

Legal principles established

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  • Jurisdiction is everything; a court without jurisdiction must down tools immediately
  • A court can only exercise jurisdiction donated to it by the Constitution or legislation
  • Not every claim of right to land qualifies as a customary trust; the claimant must belong to the same family, clan or group as the registered proprietor

Court orders

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  1. 1.The Defendant's Preliminary Objection dated 7th November 2020 is upheld
  2. 2.The suit is struck out
  3. 3.Costs of the suit are awarded to the Defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13(1) and (2)
  • Matrimonial Property Act, 2013Section 17
  • Constitution of KenyaArticle 165(3)
  • Marriage Act, 2014Not specified (matrimonial causes jurisdiction)

Cases cited (9)

  • AKK V PKW
    (2020) eKLR
  • Rose Wanjiru Ngare v Julius Ngare Macharia
    (2019) eKLR
  • Jane Wambui Ngeru versus Timothy Mwangi Ngeru
    (2016) eKLR / [2015] eKLR
  • Susan Kwamboka Nyakundi v Fredrick Mathenge Macharia
    (2019) eKLR
  • Victorina Nanjala Wekesa v Cleophas W Waswa & Another
    (2021) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd
    (1969) EA 696
  • The Owners of the Motor Vessel "Lillian S" Vs Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Samuel Kamau Macharia & Another V Kenya Commercial Bank Limited & 2 others
  • ISACK M'INANGA KIEBA V ISAAYA THEURI M'LINTARI & ISACK NTONGAI
    (SCOK) Petition 10 of 2015
Jurisdiction invoked
Article 162(2)(b) of the Constitution 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, "NWN v LNM (Environment & Land Case 51 of 2019) [2022] KEELC 1904 (KLR)", Case Analysis (2022). Not stated in judgment (plaint dated 25/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1904/eng@2022-01-21

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