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ELCDismissedELC No. 191 of 2015 (Notice of Motion dated October 4, 2021)· [2022] KEELC 2717 (KLR)

Gitau v Nguti (Environment & Land Case 191 of 2015) [2022] KEELC 2717 (KLR)

Environment and Land Court
18 May 2022
SKS. M. Kibunja
2,005 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The defendant, Jacinter Wanjiru Nguti, as legal representative of the estate of Evanson Kamanda Nguti, brought a notice of motion dated October 4, 2021 seeking to strike out the plaintiff's suit on the ground that it was time barred under the Limitation of Actions Act, having been filed 38 years after the alleged rights of the estate of Tirus Gitau were extinguished. She argued the estates had been administered for over 18 years and the suit was an abuse of process. The plaintiff, Evans Nguti Gitau, administrator of the estate of Tirus Gitau, opposed, noting the High Court (Omondi J) had on January 22, 2021, in Succession Cause 36 of 2002, declined jurisdiction over ownership of L.R. No. Soy Farm 10018 (703 acres) and ceded that question to the Environment and Land Court, deferring the limitation issue until ownership was determined. S.M. Kibunja J held that the ELC, under Article 162(2)(b) of the Constitution and section 13 of the ELC Act, is the appropriate forum to determine the respective interests of the two estates in the suit property; only thereafter would the question of whether the estate administration was time barred arise, and the succession court remains seized of that question. The application was found premature and raised before the wrong forum, and was dismissed with costs to the plaintiff under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the suit is barred by the Limitation of Actions Act, having been filed 38 years after the alleged extinguishment of the plaintiff's rights

Holding

The limitation objection was premature and raised before the wrong forum; ownership must be determined first by the ELC, after which the succession court can address limitation.

Reasoning

The High Court in Succession Cause 36 of 2002 had ceded jurisdiction over ownership of the suit property to the ELC, deferring the limitation issue until ownership is determined. This court therefore, as the forum with jurisdiction under Article 162(2)(b) and section 13 of the ELC Act, must first adjudicate the interests of the two estates in the suit property before any limitation question is entertained.

p. 4
02

Costs of the striking-out application

Holding

The plaintiff is entitled to costs under section 27 of the Civil Procedure Act.

Reasoning

Having dismissed the notice of motion as without merit, the court exercised its discretion under section 27 of the Civil Procedure Act and awarded the plaintiff the costs of the application, the applicant having unsuccessfully sought to strike out the suit.

p. 4

Legal principles established

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  • Where a succession dispute involves questions of beneficial ownership of land, the Environment and Land Court has jurisdiction to determine ownership interests first, and the limitation question can only be comprehensively addressed after ownership is determined.
  • The High Court as succession court and the Environment and Land Court have concurrent jurisdiction over succession disputes touching on title to land.

Court orders

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  1. 1.The defendant's notice of motion dated October 4, 2021 seeking to strike out the suit is dismissed.
  2. 2.The plaintiff is awarded the costs of the application pursuant to section 27 of the Civil Procedure Act.

Authorities

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Legislation

  • Limitation of Actions Act
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court Actsection 13
  • Law of Succession Actsection 47
  • Civil Procedure Actsection 27

Cases cited (2)

  • Leonard Kimanthi Mwanthi v Rukaria M'twerandu M'iriungi
    (2013) eKLR
  • Re Estate of Wilson Mutyauvyu Ndunda
    Machakos High Court Succession Cause No. 321 of 2003
Jurisdiction invoked
Article 162(2)(b) of the Constitution, 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, "Gitau v Nguti (Environment & Land Case 191 of 2015) [2022] KEELC 2717 (KLR)", Case Analysis (2022). ELC No. 191 of 2015 (Notice of Motion dated October 4, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2717/eng@2022-05-18

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