Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in excerpt (ELC suit; Plaint dated 21st March 2023; ruling on Notice of Motion dated 24th May 2023)· [2024] KEELC 5995 (KLR)

Kabugi v Macheru & 5 others (Environment and Land Case E016 of 2023) [2024] KEELC 5995 (KLR)

Environment and Land Court
19 September 2024
JMJ. M. Mutungi
2,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kerugoya struck out a landowner's suit because her title had already been cancelled by an unchallenged succession court order she never appealed.

What this practically means

#

Executive summary

#
The 1st and 2nd Defendants moved to strike out the Plaintiff's suit by Notice of Motion dated 24th May 2023 on four grounds: want of pecuniary and original jurisdiction under Sections 47, 48 and 50 of the Law of Succession Act, res judicata under Section 7 of the Civil Procedure Act, and failure to disclose a reasonable cause of action. The Plaintiff purchased land parcel Gichugu/Settlement/4983 from the 1st and 2nd Defendants for Kshs 1,100,000/- and sought a declaration of lawful proprietorship, a permanent injunction against the 3rd Defendant, and inhibition, alternatively compensation and general damages. Her title, however, had been annulled by a ruling of the Gichugu Magistrate's Court on 27th November 2019 in Succession Cause No. 288 of 2016, which cancelled all subdivisions of parcels 3636, 3635 and 3196 and reverted them to the deceased's name. The court held that Section 11 of the Civil Procedure Act does not oust the ELC's pecuniary jurisdiction, the remedy being transfer under Section 18(1). It further held that, although the suit was not strictly res judicata since the Plaintiff was not party to the succession cause, the ELC has no jurisdiction over succession matters and cannot inquire into the validity of a title annulled by an unchallenged order. The alternative compensation prayers were unsupported by the pleadings. The suit was struck out with costs to the 1st and 2nd Defendants.

Key legal issues

#
01

Whether the ELC lacks pecuniary jurisdiction in favour of the Magistrate's Court

Holding

The ELC is not deprived of jurisdiction by the Magistrates' pecuniary competence; the defendants' remedy was transfer under Section 18(1) of the Civil Procedure Act, not a strike-out.

Reasoning

Section 13(1) of the ELC Act vests the court with original and appellate jurisdiction. Sections 11 and 12 of the Civil Procedure Act are administrative provisions on venue, and Section 18(1) empowers the ELC to transfer suits to subordinate courts. The defendants should have sought transfer rather than striking out.

p. 4
02

Whether the suit is barred by res judicata given the ruling in Gichugu PM Succession Cause No. 288 of 2016

Holding

Strictly the suit is not res judicata because the Plaintiff was not a party to the succession cause and the issues differ, but the Plaintiff is nonetheless nonsuited because the unchallenged succession ruling annulled her title.

Reasoning

Applying the John Florence Maritime elements, res judicata requires identical parties, which is absent. However, the Magistrate's Court made a final, unchallenged order cancelling the titles emanating from parcel 3635, including 4983. This Court cannot sit on appeal over succession matters, appeals lying to the High Court under Section 50(1) of the Law of Succession Act.

p. 6
03

Whether the Plaint discloses a reasonable cause of action

Holding

The suit, as pleaded, discloses no reasonable cause of action and is struck out with costs.

Reasoning

In the face of the annulment of parcel 4983's title, the claim of lawful proprietorship cannot arise; and the alternative prayers for compensation and general damages are unsupported by the pleadings. The suit against all Defendants is therefore unsustainable in its present form.

p. 6

Legal principles established

#
  • Section 11 of the Civil Procedure Act does not oust the ELC's jurisdiction where the value of the subject matter falls within the Magistrate's Court's pecuniary jurisdiction; the proper course is an application for transfer under Section 18(1)
  • A party affected by an unchallenged order annulling a title cannot sustain an ownership suit over that title without first setting aside or reviewing the order

Court orders

#
  1. 1.The Plaintiff's suit as against all the Defendants is struck out for failure to disclose a reasonable cause of action
  2. 2.Costs of the suit and of the application awarded to the 1st and 2nd Defendants

Authorities

#

Legislation

  • Law of Succession Act, Cap 160Sections 47, 48(1), 50(1)
  • Civil Procedure Act, Cap 21Sections 7, 11, 12, 18(1)
  • Environment and Land Court Act, 2011Sections 13(1), 26(3)(4)
  • Magistrate's Court Act, 2015Sections 6, 7(1)

Cases cited (3)

  • Phoenix of EA Assurance Company Ltd v SM Thiga t/a Newspaper Service
    (2019) eKLR
  • Bank of Africa Kenya Ltd v John Ndungu Gachara
    (2022) eKLR
  • John Florence Maritime Services Ltd & Another v C. C Transport and Infrastructure & 3 Others
    (2021) eKLR
Jurisdiction invoked
Section 13(1) of the Environment and Land Court Act, 2011 (original and appellate jurisdiction over environment and land matters)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kabugi v Macheru & 5 others (Environment and Land Case E016 of 2023) [2024] KEELC 5995 (KLR)", Case Analysis (2024). Not stated in excerpt (ELC suit; Plaint dated 21st March 2023; ruling on Notice of Motion dated 24th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5995/eng@2024-09-19

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