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ELCDismissedNot stated in judgment (ELC, Embu)· [2024] KEELC 4462 (KLR)

Joseph & another v Nyaga & 5 others (Environment & Land Case E020 of 2021) [2024] KEELC 4462 (KLR)

Environment and Land Court
15 May 2024
2,475 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st to 5th defendants raised a preliminary objection dated October 12, 2022 seeking dismissal of the plaintiffs' suit on four grounds: that the suit offends Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act; that it purports to direct inter vivos gifts without the donor being a party, contrary to the Law of Succession Act; that the court lacks jurisdiction; and that the suit is fatally defective. The plaintiffs responded that the suit concerns fraudulent subdivision and transfer of land known as Ngandori/kirigi/8476, originally registered to Joseph Nyaga M'Mbui, father of both sets of parties, and that such claims fall within the ELC's jurisdiction, relying on Owners of the Motor Vessel 'Lilian S' and section 80 of the Land Registration Act. Justice A. Kaniaru applied the Mukisa Biscuit test, holding that a preliminary objection must raise a pure point of law on assumed facts. He found that whether the plaintiffs are entitled to a half share, and whether the transaction was a gift inter vivos, are factual questions for trial, not proper grounds for a preliminary objection. The court held the suit falls squarely within the ELC's jurisdiction under Article 162(2)(b) and section 13, and that section 80 of the Land Registration Act grounds the fraud-based claim. The preliminary objection was dismissed with costs to the plaintiffs on May 15, 2024 at Embu.

Key legal issues

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01

Whether the suit offends Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act

Holding

The issues raised fall squarely within the jurisdiction of the ELC; the suit does not offend those provisions

Reasoning

The court examined Article 162(2)(b) and section 13 of the ELC Act, which confer jurisdiction over disputes relating to title to land. The plaintiffs seek cancellation of titles allegedly procured by fraud, a land dispute. Whether the plaintiffs are entitled to their claimed share requires proof through evidence at trial and cannot be resolved as a succession matter on a preliminary objection.

p. 5
02

Whether the suit impermissibly directs inter vivos gifts contrary to the Law of Succession Act

Holding

Whether the transaction amounts to a gift inter vivos can only be determined at trial by evidence; it is not a proper ground for a preliminary objection

Reasoning

The defendants argued the suit enforces gifts inter vivos from a living donor who is not a party. The court held this is a factual question requiring evidence at trial, beyond the purpose of a preliminary objection, which must rest on pure points of law assuming pleaded facts are correct. Consequently, there was no proper preliminary objection before the court.

p. 5

Legal principles established

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  • A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
  • Section 80 of the Land Registration Act empowers the ELC to rectify the register where registration was obtained by fraud or mistake, grounding jurisdiction over claims of fraudulent transfer

Court orders

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  1. 1.The preliminary objection dated October 12, 2022 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiffs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Act, 2011Sections 4 and 13
  • Law of Succession ActNot specified
  • Land Registration ActSection 80

Cases cited (11)

  • Re Estate of the late Gedion Manthi Nzioka (deceased)
    2015 eKLR
  • Re Estate of Chesimbili Sindani (deceased)
    (2021) eKLR
  • Estate of the late Gichunge M’itwerandu alias Githungu M’Nthiiri
    High Court Succession Cause no. 15 of 2015
  • Samuel Kamau Macharia & anor v Kenya Commercial Bank Ltd & others
    (2012) eKLR
  • Orange Democratic Movement v Yusuf Ali Mohammed & 5 others
    (2018) eKLR
  • Owners of the Motor vessel “Lilian S” v Caltex Oil (Kenya) Ltd
    (1989) KLR
  • In the matter of Interim Independent Electoral Commission
    (2011) eKLR Constitutional Application No. 2 of 2011
  • Joseph Wachira Mbiti v George Muhoho Wanjiru & anor
    (2020)
  • Zipporah Njoki Kangara v Rock and Pure Ltd & 3 others
    (2021) eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & anor
    (2016) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with section 13 of the Environment and Land Court Act, 2011

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, "Joseph & another v Nyaga & 5 others (Environment & Land Case E020 of 2021) [2024] KEELC 4462 (KLR)", Case Analysis (2024). Not stated in judgment (ELC, Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4462/eng@2024-05-15

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