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ELCDismissedMeru ELC Appeal (as stated in record of appeal; number not printed in the extract)· [2022] KEELC 2900 (KLR)

ZACHARIAH KIBURI M’THARANJU v JACOB M’MANYARA

Environment and Land Court
11 May 2022
4,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed an appeal challenging a land dispute decided by Njuri Ncheke elders, confirming such traditional awards bind parties who participate without objecting.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru against the trial court's judgment of 21.11.2019 entering judgment for the respondent in line with an award of the Njuri Ncheke council of elders, and the ruling of 18.3.2021 dismissing the appellant's application for review, stay, suspension, variation and setting aside of that judgment. The underlying dispute concerned a claimed sale of one acre out of L.R. Tigania/Thananga/33, property of the estate of the parties' deceased father-in-law, which was the subject of a confirmed grant in Meru High Court Succession Cause No. 82 of 2002. The probate court had referred the ownership issues to the ELC. C.K. Nzili J framed two issues: the ELC's power to handle a land dispute forming part of a distributed estate, and whether the appellant had made a case for review, stay and suspension of the judgment. The court held that the trial court had jurisdiction, having been properly seised of the isolated property issue under Rule 41 of the Probate and Administration Rules by orders of Gikonyo J and Mbugua J which were never appealed. On review, the court found no error apparent on the face of the record, no new or crucial evidence, the order sought to be reviewed had not been extracted and attached, and there was no compliance with Order 9 Rule 9. The appellant was found to have consented to and participated in the Njuri Ncheke process, including taking a traditional oath, and never moved to vitiate the award under Order 46. The appeal was dismissed with costs.

Key legal issues

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01

Jurisdiction of the ELC over land forming part of a distributed estate under a confirmed grant

Holding

The ELC had jurisdiction because the probate court, under Rule 41 of the Probate and Administration Rules, referred the ownership issue to the ELC; the probate court had not determined ownership as between the parties.

Reasoning

The probate court issued a confirmed grant, but on the respondent's application seeking revocation, Gikonyo J directed the ownership issues be litigated before the ELC. Rule 41 permits isolation of a disputed property pending determination. No appeal or review of those orders was mounted, so the trial court properly entertained the suit without sitting on appeal over the probate decree.

p. 5
02

Whether the appellant made a case for review of the judgment adopting the Njuri Ncheke award

Holding

No. The alleged new documents were already on record, the order sought to be reviewed was not attached, and the application was filed without compliance with Order 9 Rule 9.

Reasoning

All succession documents had been filed at the inception of the suit by the erstwhile advocates; nothing new was attached. The order sought to be reviewed was not extracted and attached, and the record did not show leave for the incoming firm. Delay of four months was unexplained. The review application therefore failed the Order 45 Rule 1 threshold.

p. 7
03

Participation in the Njuri Ncheke proceedings and fairness of the award

Holding

The appellant consented to the elders' jurisdiction, participated (including cross-examination and a traditional oath), and never sought to set aside the award under Order 46.

Reasoning

The respondent applied formally for referral; no appeal was lodged against the referral order. The appellant admitted the referral, could have summoned the elders for cross-examination, or asked the court to decline to adopt the award for fraud, illegality, misrepresentation or collusion, but did none of these. He demonstrated no violation of fair hearing or access to justice.

p. 7

Legal principles established

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  • Where a probate court isolates, under Rule 41 of the Probate and Administration Rules, issues of ownership of estate property for determination by the Environment and Land Court, that court has jurisdiction to hear and determine the land dispute and does not sit on appeal against the High Court probate decree.
  • A party who participated in a court-referred traditional dispute resolution process without objecting, and who did not move the court to vitiate the award under Order 46 Civil Procedure Rules, cannot later attack the award on appeal.
  • The order or decree sought to be reviewed or appealed against must be extracted and attached to the application or record of appeal; failure is not a mere formality.

Court orders

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  1. 1.The appeal is dismissed with costs.

Authorities

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Legislation

  • Law of Succession ActSection 47
  • Law of Succession ActSections 76 and 82
  • Law of Succession Act Cap 160Section 47
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 46 Rule 16 (and Order 46 generally)
  • Civil Procedure RulesOrder 36 Rule
  • Probate and Administration RulesRule 41 (and rules 44, 59 and 73)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (15)

  • High Court Nairobi Civil Appeal No. 38 of 2017 [2020] eKLR
    [2020] eKLR
  • M'Rukaria M'Twerandu v Leonard Kimeu Mwanthi
  • Re-estate of Stone Kathui deceased [2016] eKLR
    [2016] eKLR
  • Executive Committee Chelimo Plot Owner's Welfare Group and 288 others vs Langat Joel & 4 others (sued as the management committee of Chelimo Squatters Group (2018) eKLR
    (2018) eKLR
  • Suleiman Murunga vs Nilestar Holdings Ltd & another [2015]
    [2015]
  • Re-estate of Julius Ndubi Javan deceased (2018) eKLR
    (2018) eKLR
  • Re-estate of Strone Kathuli Muinde (deceased) 2016 eKLR
    2016 eKLR
  • Joseph Kaberia Kumari v Tony Mwenda Muthaura [2021] eKLR
    [2021] eKLR
  • Isaac Kinyua & 3 others v Hellen Kaigongi [2018] eKLR
    [2018] eKLR
  • Estate of M'Murianki M'Mugwika (deceased) [2019] eKLR
    [2019] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & others [2019] eKLR
    [2019] eKLR
  • Re estate of Mbai Wainaina (deceased) [2015] eKLR
    [2015] eKLR
  • Re Estate of Alice Mumbua Mutua (deceased) [2017] eKLR
    [2017] eKLR
  • Wanyutu Agrovet Ltd v Airtel Network Kenya Ltd & Chartered Institute of Arbitrators Kenya branch (interested party) [2019] eKLR
    [2019] eKLR
  • Erastus Gitonga Mutuma vs Mutia Kanono & 3 others (2012) eKLR
    (2012) eKLR
On appeal from
Magistrates' Court (trial court, suit transferred to Tigania Law Courts)
not stated in judgment
Jurisdiction invoked
First appeal under Civil Procedure Rules; Article 159(2)(c) of the Constitution (alternative dispute resolution) discussed

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, "ZACHARIAH KIBURI M’THARANJU v JACOB M’MANYARA", Case Analysis (2022). Meru ELC Appeal (as stated in record of appeal; number not printed in the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2900/eng@2022-05-11

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