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ELCDismissedNot stated on the face of the ruling· [2024] KEELC 906 (KLR)

Chege & 2 others v Chege alias Chege “B'' (Environment & Land Case 424 of 2013) [2024] KEELC 906 (KLR)

Environment and Land Court
15 February 2024
2,155 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 refused to adopt a family's land-sharing agreement because distributing a deceased person's estate falls outside the Environment and Land Court's powers.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (M.D. Mwangi, J) on the Plaintiffs' application dated 26th June 2023, brought under Order 45 Rule 1(b) of the Civil Procedure Rules and Article 159(d) of the Constitution. The Applicants sought review of the court's order of 10th July 2019, contending that although two consents had been filed, the court only adopted the consent of 20th May 2019 and inadvertently omitted the consent dated 22nd June 2018 (filed 18th July 2018), which provided for distribution of land parcel Dagoretti/Riruta/731 among all the children of the late James Chege Ndwaru. The application was unopposed, but the court determined it on its merits. The court accepted that the omission of the 2018 consent would amount to an error apparent on the face of the record warranting review. However, scrutinising the 2018 consent, the court found that it invited the court to distribute the property among all the children of a deceased person, a matter governed by the Law of Succession Act and reserved to the High Court and magistrates appointed under Section 47. The Environment and Land Court, established under Article 162(2)(b), lacks jurisdiction over succession and administration of estates, and parties cannot confer jurisdiction by consent. The application dated 26th June 2023 was disallowed with no orders as to costs.

Key legal issues

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01

Whether the omission of the consent dated 22nd June 2018 from the order of 10th July 2019 was an error apparent on the face of the record warranting review under Section 80 CPA and Order 45 Rule 1

Holding

Although the omission would ordinarily amount to an error apparent on the record, the consent as framed seeks relief (distribution of a deceased's estate among all children) that falls outside the court's jurisdiction, so review was refused.

Reasoning

The court accepted that only the consent of 20th May 2019 was adopted and the earlier consent left out, which on its face would justify review. However, before adopting a consent the court must satisfy itself of jurisdiction. The 2018 consent directs distribution of Dagoretti/Riruta/731 among all children of the late James Chege Ndwaru, a succession matter reserved to the High Court and magistrates appointed under Section 47 of the Law of Succession Act. The application would require the court to confer jurisdiction on itself.

p. 5
02

Whether a court is bound to adopt consents filed by parties

Holding

A court has power to inquire into the propriety of a proposed consent order before adopting it and may reject a consent that is fraudulent, illegal or against public policy.

Reasoning

Relying on Onesmus Munio Ndumbi v Joseph Njogu Paulo, the court held that while parties are free to enter consents, the court is not bound to adopt them as orders of the court. The court bears oversight over matters before it and may reject consents aimed at stealing a march on a party, tainted by apparent fraud, outrightly illegal, or against public policy; a consent is always subject to scrutiny by the presiding judicial officer.

p. 4

Legal principles established

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  • Parties cannot, even by consent, confer jurisdiction on a court where no such jurisdiction exists.
  • A court can only exercise jurisdiction as conferred by the Constitution or written law and cannot arrogate to itself jurisdiction exceeding that conferred by law.
  • The Environment and Land Court's jurisdiction does not extend to testate and intestate succession and administration of estates of deceased persons.

Court orders

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  1. 1.The Plaintiffs' application dated 26th June 2023 is disallowed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Constitution of KenyaArticle 159(d)
  • Constitution of KenyaArticle 162(2)(b)
  • Civil Procedure ActSection 80
  • Law of Succession ActSection 47

Cases cited (6)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018
  • Onesmus Munio Ndumbi vs. Joseph Njogu Paulo & Another
    [2017] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • The Owners of Motor Vessel Lilian S Vs Caltex Kenya Ltd
    (1989) KLR
  • Equity Bank Ltd -versus- Bruce Mutie Mutuku t/a Diani Tour Travel
    [2016] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (special court for environment and land disputes); application brought under Order 45 Rule 1(b) Civil Procedure Rules and Article 159(d) Constitution

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, "Chege & 2 others v Chege alias Chege “B'' (Environment & Land Case 424 of 2013) [2024] KEELC 906 (KLR)", Case Analysis (2024). Not stated on the face of the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/906/eng@2024-02-15

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