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ELCDismissedNotice of Motion dated 14th January, 2022 (Eldoret Kadhi's Court Succession Cause No. 24 of 2015 intended appeal)· [2022] KEELC 2713 (KLR)

Jeptoo & another v Tarus & 2 others (Miscellaneous Application E001 of 2022) [2022] KEELC 2713 (KLR)

Environment and Land Court
5 July 2022
MMM. N. Mwanyale
1,433 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 dismissed the applicants' attempt to appeal a Kadhi's Court succession ruling, holding that succession appeals belong in the High Court.

What this practically means

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Executive summary

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This was a Notice of Motion dated 14th January 2022 in the Environment and Land Court at Kapsabet, brought by intended Appellants seeking (i) temporary stay of execution of the judgment of the Kadhi's Court at Eldoret in Succession Cause No. 24 of 2015 delivered on 18th April 2016, and (ii) leave to file a Memorandum of Appeal out of time against that judgment. The Applicants, daughters of the late Tuiya Salim, contended that parcel Nandi/chepkongony/922, registered in their mother's name, was never part of the estate of Kiptarus Chemwor and was unlawfully included in the succession cause, which was heard exparte; the 2nd Respondent had gazetted an intention to issue title over the parcel. The 1st Respondent opposed, asserting the Applicants knew of the proceedings and had filed a separate ELC suit. The 2nd and 3rd Respondents raised a preliminary point of jurisdiction: an appeal from a Kadhi's Court succession cause lies to the High Court, not the ELC, and the conditions for extension of time under First American Bank of Kenya Ltd v Gulab P. Shar had not been met. The Court addressed jurisdiction first. Holding that although the judgment touched land ownership, it was delivered in a succession cause whose appeal lies in the High Court Family Division, the Court found the application filed in the wrong forum, dismissed it, and vacated the interim orders.

Key legal issues

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01

Jurisdiction of the ELC over an intended appeal from a Kadhi's Court succession cause

Holding

The ELC lacks jurisdiction; the application was filed in the wrong forum

Reasoning

The decision sought to be appealed was delivered in a succession proceeding. Although the judgment touched ownership of land, the character of the proceedings determines the appellate forum. Appeals from succession causes lie to the High Court. The Applicant's reliance on Sections 4(2) and 13(1) of the ELC Act could not confer jurisdiction over a succession appeal. The Court therefore addressed jurisdiction first, before the merits, and dismissed the application.

p. 4

Legal principles established

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  • An appeal from a Kadhi's Court judgment delivered in a succession cause lies to the High Court (Family Division), not the Environment and Land Court, even where the judgment touches ownership of land

Court orders

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  1. 1.The application is dismissed for want of jurisdiction, having been filed in the wrong forum
  2. 2.The interim orders stand vacated

Authorities

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Legislation

  • Environment and Land Court ActSection 4(2)
  • Environment and Land Court ActSection 13(1)
  • Civil Procedure Rules (Order 42 Rule 6)Order 42 Rule 6

Cases cited (1)

  • First American Bank of Kenya Ltd vs Gulab P. Shar & 2 others
On appeal from
Kadhi's Court at Eldoret
Succession Cause No. 24 of 2015
Jurisdiction invoked
Section 4(2) and Section 13(1) of the Environment and Land Court Act urged by the Applicant; challenged by the 2nd and 3rd Respondents

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, "Jeptoo & another v Tarus & 2 others (Miscellaneous Application E001 of 2022) [2022] KEELC 2713 (KLR)", Case Analysis (2022). Notice of Motion dated 14th January, 2022 (Eldoret Kadhi's Court Succession Cause No. 24 of 2015 intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2713/eng@2022-07-05

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