Kithini & 2 others v Kyenze (Administrator of the Estate of the Late Ivulu Kithini)
The bottom line
#Kenya's Environment and Land Court can hear family land disputes, so the defendant's attempt to send this inheritance-flavoured case to the succession court failed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over a claim framed by the Defendant as one of inheritance
The court has jurisdiction because the Plaintiffs' prayers are based on occupation, use and ownership of land; the preliminary objection was dismissed
The court derives jurisdiction from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, which confer power over disputes relating to title, tenure, boundaries and interests in land. Relying on Salome Wambui Njau, succession disputes touching on land may fall concurrently within the ELC's jurisdiction. Since the Plaintiffs sought declarations of ownership based on adverse possession and long occupation, the dispute is over land, not merely inheritance. Further, the objection depended on contested facts, so it was not a true preliminary objection.
Whether the Defendant's preliminary objection was a pure point of law
No - it raised contentious issues of fact and therefore was not a valid preliminary objection
Applying Mukisa Biscuits and Oraro v Mbaja, a preliminary objection must rest on undisputed facts and cannot require ascertainment of facts or evidence. Whether the suit property formed part of the estate of the late Ivulu Kithini and whether the Plaintiffs had occupied it adversely were factual questions requiring proof, so the objection failed at the threshold.
Legal principles established
#- A preliminary objection must be on a pure point of law, founded on undisputed facts, and cannot be raised where facts must be ascertained or evidence adduced
- The Environment and Land Court has jurisdiction over succession-related disputes so long as the dispute concerns use, occupation or title to land
Court orders
#- 1.The Preliminary Objection dated 30th August, 2022 is dismissed with costs to the Plaintiffs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithini & 2 others v Kyenze (Administrator of the Estate of the Late Ivulu Kithini)", Case Analysis (2023). Environment & Land Case E011 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20024/eng@2023-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.