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ELCDismissedKisii Civil Suit No. 377 of 2012 (as consolidated with Kisii Civil Suits No. 58 of 2015 and 59 of 2015)· [2024] KEELC 4603 (KLR)

Gekara v Gekara & 3 others (Environment & Land Case 97 of 2021) [2024] KEELC 4603 (KLR)

Environment and Land Court
22 May 2024
744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear land disputes even when the registered owner has died, refusing to send the case to a succession court.

What this practically means

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Executive summary

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The Defendants applied by Notice of Motion dated 12/3/2024 for striking out of the suit on the ground that it disclosed no reasonable cause of action, contending that the dispute over L.R. No. Ekerubo Settlement Scheme/36 belonged to a succession court because the registered owners, Nahason Gekara Okero and Josephine Kwamboka Gekara, were deceased and the suit had abated. The three consolidated suits arose among sons of the late Nahason Gekara Okero, who held title to the property issued on 11/3/2010, later subdivided into Ekerubo Settlement Scheme/187, 188 and 189. The Plaintiff, a legal representative of his father's estate, relied on official searches showing the subdivisions and on Keroka PM CC Succession Cause No. 36 of 2021 listing the suit property as the sole asset of the deceased. The court noted an earlier order of 25/5/2022 staying proceedings pending determination of the succession cause, and that the Plaintiff reported on 21/12/2023 that the succession court had held it lacked jurisdiction, though no documents proved this. Holding that no good reasons had been advanced to show the ELC lacked jurisdiction, the court dismissed the application dated 12/3/2024, awarded costs in the cause, and directed the matter to proceed to full hearing with expedition.

Key legal issues

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01

Whether the suit is barred because the registered owners are deceased and the matter belongs to a succession court

Holding

Application dismissed; the court retained jurisdiction as no reasons were advanced showing the succession court was the proper forum

Reasoning

The Defendants argued that the registered owners, Nahason Gekara Okero and Josephine Kwamboka Gekara, were deceased and the suit had abated, so the dispute lay within a succession court. The court noted the Keroka PM CC Succession Cause No. 36 of 2021 was said to have been determined with the succession court holding it had no jurisdiction, and that no reasons were advanced for want of jurisdiction by the Keroka PM's Court. Absent good reasons, the ELC retained jurisdiction.

p. 2
02

Whether the prior stay order pending determination of the succession cause still stands

Holding

The stay was lifted in effect as the succession cause had been determined and the court directed the matter to proceed to full hearing

Reasoning

On 25/5/2022 the court had stayed further proceedings awaiting determination of the succession cause. The Plaintiff reported on 21/12/2023 that the Keroka PM CC Succession Cause No. 36 of 2021 was determined, with that court holding it had no jurisdiction. With the impediment resolved and no good reason shown to divest this court of jurisdiction, the court directed the matter to proceed into full hearing with expedition.

p. 2

Legal principles established

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  • Death of the registered owner of suit land does not, without more, oust the ELC of jurisdiction where no reasons are shown why a succession cause is the proper forum

Court orders

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  1. 1.The Application dated 12/3/2024 seeking striking out of the suit is dismissed
  2. 2.Costs in the cause
  3. 3.The matter to proceed into full hearing with expedition

Authorities

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Legislation

  • Civil Procedure Act / Rules (implicitly, on striking out and abatement)not specified
Jurisdiction invoked
Original jurisdiction over land disputes (Application to strike out for lack of reasonable cause of action; court held it retains jurisdiction notwithstanding the death of the registered owner)

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, "Gekara v Gekara & 3 others (Environment & Land Case 97 of 2021) [2024] KEELC 4603 (KLR)", Case Analysis (2024). Kisii Civil Suit No. 377 of 2012 (as consolidated with Kisii Civil Suits No. 58 of 2015 and 59 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4603/eng@2024-05-22

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