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ELCDismissedEnvironment & Land Case E223 of 2021· [2023] KEELC 15847 (KLR)

Karumba & another v Albushra Real Estate Limited; Kungu & another (Interested Parties)

Environment and Land Court
2 March 2023
1,861 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 ruled that land disputes involving estate property can proceed to trial, even where succession grants are disputed.

What this practically means

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Executive summary

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This ruling by O. A. Angote, J of the Environment and Land Court at Nairobi determines a preliminary objection dated 27 August 2021 filed by Albushra Real Estate Limited against a suit by Johnson Muchai Karumba and Christopher Karumba concerning L.R No. 1/603, Wood Avenue. The objection raised three points: lack of jurisdiction (the suit being a succession matter), lack of locus standi (the plaintiffs being beneficiaries rather than personal representatives of the Estate of the late Kungu Karumba), and res judicata (the issues allegedly determined in Nairobi High Court Succession Cause No. 138 of 1983). The defendant, relying on Owners of the Motor Vessel 'Lillian S', Beatrice Wambui Kiarie, Trouistik Union International and Hawo Shanko, argued that only personal representatives may enforce causes of action over a deceased's estate. The plaintiffs countered that the dispute concerns their possession, occupation and investment on the land and their eviction by the defendant, and that they held a grant in Succession Cause No. 2860 of 2012 which had never been revoked. The court applied the Mukisa Biscuit definition of a preliminary objection and found the suit falls within section 13(2)(e) of the Environment and Land Court Act as a land dispute. It held that the validity of the conflicting grants could not be determined on a preliminary objection but only on affidavit evidence or at trial. Applying the Maina Kiai res judicata elements, it found the parties and reliefs in the two suits different. The preliminary objection was dismissed with costs.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a dispute framed as a succession matter

Holding

The court has jurisdiction because the suit is a land dispute concerning occupation, trespass and eviction, falling under section 13(2)(e) of the ELC Act

Reasoning

The judge read the plaint and the Notice of Motion and found the real dispute is possession and occupation of land: the plaintiffs claim occupation and investments on the suit property and complain of interruption of quiet possession and threatened eviction. Whether their occupation is legal is a matter for trial, so jurisdiction is established at this stage.

p. 3
02

Whether beneficiaries of a deceased's estate have locus standi to sue a third party over estate property

Holding

The objection fails because the parties hold conflicting perspectives on the grants; the validity of the grants cannot be resolved on a preliminary objection

Reasoning

The plaintiffs sued as beneficiaries relying on grants in Succession Cause No. 138 of 1983 and Succession Cause No. 2860 of 2012, while the defendant claims to have leased from the administrators. With conflicting claims as to the grants, the correctness of pleaded facts cannot be assumed, and the validity of the grants requires affidavit evidence or trial.

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Whether the suit is res judicata given Succession Cause No. 138 of 1983

Holding

The res judicata plea fails; the parties, reliefs and issues in the two suits differ

Reasoning

Relying on the Maina Kiai elements, the court found the defendant was not a party to the succession suit nor shown to claim under any party to it. Further, the succession matter involved temporary injunctions, whereas the present suit seeks a permanent injunction and eviction against the defendant, so the issues are not the same.

p. 4

Legal principles established

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  • A preliminary objection cannot be used to determine the validity of competing grants of administration; that requires evidence or trial
  • All res judicata pre-conditions under section 7 of the Civil Procedure Act must be fulfilled conjunctively for the plea to succeed

Court orders

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  1. 1.The defendant's Preliminary Objection dated August 27, 2021 is dismissed with costs to the plaintiffs
Jurisdiction invoked
Section 13(2)(e) 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, "Karumba & another v Albushra Real Estate Limited; Kungu & another (Interested Parties)", Case Analysis (2023). Environment & Land Case E223 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15847/eng@2023-03-02

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