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ELCDismissed· [2024] KEELC 6691 (KLR)

Maina v Maina & another (Environment & Land Case 10 of 2022) [2024] KEELC 6691 (KLR)

Environment and Land Court
23 July 2024
MMM.D. MWANGI
1,664 words in judgment
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The bottom line

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A Kenyan court ruled that land sale fraud disputes belong in the Environment and Land Court, and defendants lose the right to arbitration if they wait too long to ask for it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (M.D. Mwangi J) determined the 1st Defendant's notice of application dated 27th March 2024 seeking to strike out the plaintiff's suit for want of jurisdiction or, in the alternative, to refer it to arbitration and/or mediation, on the basis that the suit property, L.R No. 209/9738, forms part of the estate of the late Evans Maina Mwangi pending in Succession Cause No. 778/1990, and that the Sale Agreement contained an arbitration clause. The 2nd Defendant opposed, arguing that jurisdiction had already been settled by Majanja J who transferred the file to this Court, and that the application for arbitration was brought too late. The court framed two issues: its jurisdiction, and referral to arbitration. On the first, relying on the Court of Appeal's decision in Diasproperty Limited, the court held that the dispute concerns the alleged fraudulent sale of Vumira House and the ownership and use of land under Article 162(2)(b), not distribution of the estate, so the ELC has jurisdiction. On the second, applying section 6(1) of the Arbitration Act and the Adrec, Diocese of Marsabit and Mt Kenya University authorities, the court held that the 1st Defendant, having entered appearance and filed defence on 28th October 2010, had submitted to the court's jurisdiction and the 2024 application was 'too little too late'. The application was dismissed with costs to the 2nd Defendant.

Key legal issues

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01

Whether the ELC has jurisdiction over a suit alleging fraudulent sale of property forming part of a deceased's estate

Holding

Yes; the suit concerns ownership and use of land, not distribution of the estate

Reasoning

The court considered the interplay between the ELC's jurisdiction and the High Court's succession jurisdiction under the Law of Succession Act. Relying on the Court of Appeal decision in Diasproperty Limited and the earlier ruling by Majanja J transferring the file, it held that the plaintiff's claim is on the alleged fraudulent sale of Vumira House, not distribution of the estate of Evans Maina Mwangi, hence within ELC jurisdiction.

p. 3
02

Whether the suit should be referred to arbitration under the arbitration clause in the Sale Agreement

Holding

No; the application was made after filing of defence and appearance, contrary to section 6(1) of the Arbitration Act

Reasoning

Section 6(1) requires the application not later than entry of appearance. The 1st Defendant filed its defence and memorandum of appearance on 28th October, 2010 and only applied in 2024. Following Adrec Ltd and Mt Kenya University, subjecting itself to the court's jurisdiction forfeited the right to referral; the delay cannot be excused as a mere technicality.

p. 4

Legal principles established

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  • Disputes relating to ownership and use of land registered in a deceased's name fall within the exclusive jurisdiction of the Environment and Land Court, not the succession court
  • An application to stay proceedings and refer a dispute to arbitration under section 6(1) of the Arbitration Act must be made not later than the time of entering appearance; filing a defence waives the right

Court orders

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  1. 1.The 1st Defendant's application dated 27th March, 2024 is dismissed
  2. 2.Costs of the application to the 2nd Defendant

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3, 3A, 16, 59
  • Constitution of Kenya, 2010Article 162(2)(b); Article 165(5)(b); Article 159(2)(d)
  • Environment and Land Court Act, 2012Section 13
  • Law of Succession Act, Cap. 160Rule 43(1) of the Probate and Administration Rules
  • Arbitration ActSection 6(1), (2), (3)

Cases cited (4)

  • Diasproperty Limited & 5 others vs- Githae & 10 others
    Civil Appeal E155 & E157 of 2023 (Consolidated)) [2024] KECA 318 (KLR)
  • Adrec Ltd –vs- Nation Media Group Ltd
    (2017) eKLR
  • Diocese of Marsabit registered Trustees Vs Techno Trade Pavilion Ltd
    (2014) eKLR
  • Mt Kenya University -vs- Step Up Holding (K) Limited
    [2010) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2012 (land use and ownership disputes); application brought under Sections 1A, 1B, 3, 3A, 16 and 59 of the Civil Procedure Act, Cap. 21

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, "Maina v Maina & another (Environment & Land Case 10 of 2022) [2024] KEELC 6691 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6691/eng@2024-07-23

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