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ELCStruck OutEnvironment & Land Case 58 of 2021 (Originally Kisumu ELC Case No. 170 of 2017)· [2023] KEELC 17105 (KLR)

Abondo & 14 others v Okado & another

Environment and Land Court
27 April 2023
AKA. Y. Koross
2,226 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land suit because it cannot overturn a High Court probate decision; the correct route was appeal or review.

What this practically means

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Executive summary

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The 15 Plaintiffs, led by Vincent Ochung Abondo, sued the Defendants over land parcel North Sakwa/Nyawita/82 (the mother parcel) and its derivatives. The 1st Plaintiff claimed he purchased two subdivided parcels from Samuel Odongo Ambasa, who had obtained a grant in Alal's estate in 1986, and later subdivided them among his relatives. The 1st Defendant obtained a fresh grant in 2012, and on 3 July 2014 the probate court ordered the disputed properties reverted to him; he subsequently subdivided the mother parcel, with one resulting parcel registered in the 2nd Defendant's name. The Plaintiffs sought declarations that the 2014 order was null and void, that they were absolute owners, cancellation of the Defendants' registrations, general damages, an injunction and costs. The court framed four issues, the threshold one being its own jurisdiction. Applying Samuel Kamau Macharia and Greenfield Investments, Koross J held that the Environment and Land Court and the High Court are courts of equal and concurrent status under Articles 162(2)(b) and 165 of the Constitution, and that the ELC has no appellate, review or supervisory jurisdiction over a High Court probate decision. The Plaintiffs' proper remedy was an appeal to the Court of Appeal or review in the High Court. The suit was found incompetent and struck out, with costs to the Defendants under section 27(1) of the Civil Procedure Act. The merits, including the bona fide purchaser claim, were not determined.

Key legal issues

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01

Whether the ELC can declare a High Court probate decision illegal, null and void

Holding

No - the ELC and High Court are courts of equal and concurrent status; the ELC has no appellate, review or supervisory jurisdiction over High Court decisions

Reasoning

Article 162(2)(b) establishes the ELC and the Environment and Land Court Act defines its jurisdiction. The High Court under Article 165 is of equal status. Jurisdiction is conferred by the Constitution or statute, and neither confers power on the ELC to review or nullify a High Court judge's decision. The proper remedy was appeal to the Court of Appeal or review in the High Court.

p. 5
02

Whether the Plaintiffs proved their case on a balance of probabilities

Holding

Not reached - the suit was struck out for want of jurisdiction before the merits were considered

Reasoning

Because the court found it bereft of jurisdiction to overturn the probate court orders, the second, third and fourth issues fell away. The court did not make findings on the validity of the 1st Plaintiff's title, bona fide purchaser status, or alleged fraud.

p. 5

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation and it cannot arrogate to itself jurisdiction exceeding that conferred by law
  • The ELC cannot exercise appellate or review jurisdiction over decisions of the High Court, a court of equal and concurrent status

Court orders

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  1. 1.The Plaintiffs' suit is struck out as incompetent
  2. 2.Costs awarded to the Defendants pursuant to section 27(1) of the Civil Procedure Act

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165
  • Environment and Land Court ActSection 13(4)
  • Environment and Land Court ActSection 13(7)(b)
  • Sale of Goods ActSection 6
  • Law of Contract ActSection 3(3)
  • Law of Succession ActSection 82(b)(ii)
  • Law of Succession ActSection 45(1)
  • Civil Procedure ActSection 27(1)

Cases cited (5)

  • Fletcher v. Peck
    10 US 87 (1810)

    Rights of third-party purchasers without notice for value cannot be disregarded where fraud is proved

  • Eunice Grace Njambi Kamall & another v. the Honourable Attorney General & 5 others
    Civil Suit Number 976 of 2012

    Quoted Fletcher v. Peck on bona fide purchasers

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    Jurisdiction flows from the Constitution or legislation; a court cannot arrogate excess jurisdiction

  • Greenfield Investments Limited & another v. State of the Republic of Kenya & 3 others
    [2013] eKLR

    A court cannot sit as supervisor of a concurrent court or determine appeals from its decisions

  • Re-estate of Jamin Inyanda Kadambi (deceased)
    [2021] eKLR

    Transacting on an unconfirmed grant is illegal and amounts to intermeddling

Jurisdiction invoked
Article 162(2)(b) of the Constitution and 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, "Abondo & 14 others v Okado & another", Case Analysis (2023). Environment & Land Case 58 of 2021 (Originally Kisumu ELC Case No. 170 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17105/eng@2023-04-27

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