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ELCDismissedNotice of motion dated 23.7.2024 (Eldoret, Environment and Land Court)· [2024] KEELC 6541 (KLR)

Kemei & another v Kibet & 3 others (Sued as the legal representatives of the Estate of Kibet Sang - Deceased) (Land Case E047 of 2024) [2024] KEELC 6541 (KLR)

Environment and Land Court
9 October 2024
732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to stop distribution of family land in a succession matter, ruling it has no jurisdiction over probate disputes.

What this practically means

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Executive summary

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This was an unopposed notice of motion dated 23 July 2024 in which the Plaintiff/Applicant, a brother of the Defendants/Respondents and registered owner of LR. No. Kaptagat/Lotonyok Block 3 (Ngele Tarit)/33 measuring 30.11 hectares, sought a stay of execution of the ruling/orders and certificate of confirmation of grant in Eldoret High Court Probate and Administration Cause No. 105 of 2010 (Estate of Kibet Sang, Deceased), together with an order of status quo or a temporary injunction restraining interference with, survey, subdivision, transfer, alienation or charging of the suit property. The Applicant claimed he purchased the property from the deceased in 2005 and obtained title on 10 May 2005, but the Respondents obtained and confirmed a grant on 11 December 2023 distributing the suit property to beneficiaries without disclosing it was not part of the estate, and had subdivided it. The Respondents did not enter appearance or respond, and the application proceeded ex parte. The court held it lacked jurisdiction to stay implementation of a succession cause, that being the preserve of the High Court, and that any grievance should have been raised there. On the merits, although the Applicant held title, he produced no documents evidencing the purchase, and being a beneficiary under the confirmed grant without having challenged the inclusion of the property in the estate, he failed to establish a prima facie case, irreparable loss, or the balance of convenience. The application was dismissed with no order as to costs on 9 October 2024.

Key legal issues

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01

Jurisdiction to stay implementation of a confirmed grant in succession proceedings

Holding

The ELC has no jurisdiction to stay succession proceedings; any grievance over the suit property should have been raised before the High Court handling the succession cause

Reasoning

The court held that succession matters are the exclusive preserve of the High Court. Since the certificate of confirmation of grant emanated from the High Court's probate and administration cause, the ELC cannot stay its implementation. An Applicant with issues over property included in a succession cause must pursue those issues in the succession court itself.

p. 2
02

Whether a prima facie case with probability of success was established for injunction/stay

Holding

Although the Applicant held title to the suit property, no documents evidencing the alleged purchase from the deceased were produced, and being a beneficiary under the confirmed grant, no prima facie case was established

Reasoning

The court acknowledged the Applicant's title but noted absence of documents showing how he purchased the property from his father. As a beneficiary in the succession cause who never challenged the inclusion of the property in the estate, he could not demonstrate a prima facie case, nor irreparable loss not compensable in damages.

p. 2

Legal principles established

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  • The Environment and Land Court has no jurisdiction to stay implementation of a succession cause, succession proceedings being the preserve of the High Court

Court orders

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  1. 1.The Applicant's Notice of motion dated 23.7.2024 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Statutory jurisdiction of the Environment and Land Court over land disputes; the court held succession matters are the preserve of the High Court

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, "Kemei & another v Kibet & 3 others (Sued as the legal representatives of the Estate of Kibet Sang - Deceased) (Land Case E047 of 2024) [2024] KEELC 6541 (KLR)", Case Analysis (2024). Notice of motion dated 23.7.2024 (Eldoret, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6541/eng@2024-10-09

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