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ELCOtherEnvironment & Land Case 239 of 2018· [2022] KEELC 14883 (KLR)

Wahiu & 2 others v Wahiu & another

Environment and Land Court
23 September 2022
415 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 paused a land case for six months so children could get letters of administration and pursue their late mother's share of the land.

What this practically means

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Executive summary

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This is a ruling by AK Bor, J of the Environment and Land Court delivered virtually at Nanyuki on 23 September 2022 in Environment & Land Case 239 of 2018. The suit, brought by three plaintiffs against two defendants, concerns land the plaintiffs contend was developed by their late mother. In an earlier ruling dated 9 August 2021, the court had stayed the suit pending determination of Nairobi HCCC No. 43 of 2010 (O.S) and Nairobi High Court Miscellaneous Civil Application No. 10 of 2006, in which the Family Division of the High Court at Milimani was to determine the share the plaintiffs' late mother was entitled to in the suit land. The court had observed that the mother's claim to the land survived her death and that her children, as dependants of her estate, ought to take out letters of administration and substitute her in the two suits. In the present ruling, the court, guided by Article 159 of the Constitution's imperative to administer justice without undue regard to procedural technicalities, stayed the suit for six months to enable the plaintiffs to take out letters of administration in the Family Division and thereafter pursue their late mother's assets, including any share in the suit land. The court further directed that the case be thereafter disposed of by a Judge sitting at the Environment and Land Court at Nairobi, where the suit land is situated, the judge having been transferred to Nanyuki. No costs order was made.

Key legal issues

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01

Stay of suit pending related Family Division proceedings

Holding

Suit stayed for six months to allow the plaintiffs to obtain letters of administration and pursue their late mother's estate, including any share in the suit land

Reasoning

The court had earlier stayed the suit pending determination of HCCC No. 43 of 2010 (O.S) and Misc. Civil Application No. 10 of 2006, in which the Family Division was to determine the share the plaintiffs' late mother was entitled to in the suit land. The claim survived her death and her children are her dependants. Guided by Article 159's imperative to administer justice without undue regard to procedural technicalities, the court granted six months for administration and substitution.

p. 1
02

Proper forum for final disposal

Holding

The case will be disposed of by a Judge of the Environment and Land Court at Nairobi, where the suit land is situated

Reasoning

The judge who had handled the matter was transferred to the Environment and Land Court at Nanyuki. Since jurisdiction over land disputes follows the location of the land, the court directed that the suit be disposed of by a Judge sitting at Nairobi where the suit land is situated.

p. 2

Legal principles established

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  • A claim of a deceased person to land survives death and her children may pursue it as dependants of her estate through letters of administration

Court orders

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  1. 1.Suit stayed for six months to enable the plaintiffs to take out letters of administration in the Family Division
  2. 2.Plaintiffs thereafter to pursue the assets of their late mother including her share, if any, in the suit land
  3. 3.Case thereafter to be disposed of by a Judge sitting in the Environment and Land Court at Nairobi where the suit land is situated

Authorities

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Legislation

  • Constitution of KenyaArticle 159
Jurisdiction invoked
Article 159(2)(d) of the Constitution (principles guiding exercise of judicial authority); Environment and Land Court jurisdiction over the suit land

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, "Wahiu & 2 others v Wahiu & another", Case Analysis (2022). Environment & Land Case 239 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14883/eng@2022-09-23

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