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ELCStruck OutNot stated in the judgment· [2022] KEELC 3298 (KLR)

Waweru v Estate of the Late Keziah Wamaitha Waweru & another (Environment & Land Case E096 of 2021) [2022] KEELC 3298 (KLR)

Environment and Land Court
26 May 2022
JKJ G Kemei
1,213 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 cannot stay orders made in a succession case — such applications must go to the High Court's family division.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (J G Kemei, J) determined a Notice of motion dated 3 September 2021 in which the plaintiff/applicant sought a stay of execution of orders issued in Milimani Misc. Application No. 8 of 2016 (Stanley Waweru Mungai v Susan Nyambura Nungi) confirming a grant of letters of administration intestate over the estate of Keziah Wamaitha Waweru. The applicant deponed that his late father owned land parcel Karai/Karai/237, later subdivided, and that the 2nd defendant fraudulently procured a transfer of parcel 818 to the 1st defendant and thereafter obtained and confirmed the impugned grant. He claimed to have new evidence that his late father suffered from Parkinson's disease and lacked mental capacity to transfer the parcel. The 2nd defendant opposed the application, terming it an abuse of process and res judicata given the concluded proceedings in Misc. App. No. 8 of 2016 and Nbi ELC 614 of 2009. The court framed the principal issue as whether the application was merited, and resolved it on jurisdiction. Relying on Article 162(2)(b) of the Constitution, Section 13(2) of the Environment and Land Court Act and the Supreme Court's decision in Republic v Karisa Chengo & 2 others [2017] eKLR, the court held that orders confirming a grant of letters of administration arise in succession proceedings, which fall within the province of the family/probate court and not the ELC. The application was struck out in its entirety, with each party bearing their own costs as the parties are related.

Key legal issues

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Whether the ELC has jurisdiction to stay orders issued in succession proceedings

Holding

The ELC has no jurisdiction to stay orders confirming a grant of letters of administration issued in a probate matter; the application is properly made in the family division.

Reasoning

Article 162(2)(b) and Section 13(2) of the Environment and Land Court Act confine the ELC to environment and land disputes. Citing Republic v Karisa Chengo, the court held that although the High Court, ELC and ELRC are of equal status, each exercises distinct, dedicated jurisdiction and none may hear matters reserved to the other. Orders confirming a grant of letters of administration arise in succession proceedings, which belong to the family/probate court, not the ELC. Accordingly the applicant's stay application was incompetent and was struck out.

p. 3

Legal principles established

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  • The Environment and Land Court cannot entertain applications for stay of orders issued in succession/probate proceedings; such applications fall within the exclusive jurisdiction of the family division of the High Court

Court orders

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  1. 1.The Notice of motion dated 3/9/2021 is struck out in its entirety
  2. 2.Each party to meet their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13(2)

Cases cited (1)

  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya; Section 13(2) of the Environment and Land Court Act

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, "Waweru v Estate of the Late Keziah Wamaitha Waweru & another (Environment & Land Case E096 of 2021) [2022] KEELC 3298 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3298/eng@2022-05-26

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