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ELCDismissedNot stated in judgment· [2024] KEELC 6921 (KLR)

Muumbo & another (C/o Muigai Kemei & Associates Advocates) v Mwingi View Point Lodge Limited & 8 others (Environment & Land Case 10 of 2023) [2024] KEELC 6921 (KLR)

Environment and Land Court
22 October 2024
MOMogeni
3,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ruled it can hear a land ownership dispute even when a company is involved, allowing the family's case to proceed to trial.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi, per Mogeni J, ruled on two preliminary objections dated 27/02/2024 (by the 2nd and 3rd defendants) and 7/03/2024 (by the 6th defendant), filed in response to the plaintiffs' application dated 5/12/2023 seeking priority hearing. The objectors argued that the suit violated the Succession Act and Probate and Administration Rules, that the plaintiffs, not being directors, lacked locus standi to sue on behalf of the estate of Timothy Mwandi Muumbo or the companies, that mandatory Companies Act representation requirements had not been met, and that the ELC lacked jurisdiction over a company matter. The plaintiffs replied that the 1st defendant had been flagged for deregistration and that they were beneficiaries of the deceased's estate who had objected in a succession cause. Framing two issues - jurisdiction and locus standi - the court restated the Mukisa Biscuits definition of a preliminary objection as a pure point of law. On jurisdiction, applying Article 162(2)(b), Section 13 of the ELC Act and the predominant purpose test, it held the dispute genuinely concerns ownership and fraudulent transfer of land, not company law. On locus standi, it held that whether the plaintiffs hold beneficial interest requires evidence and cannot be resolved on a preliminary objection without delving into the merits. Both preliminary objections were dismissed entirely with costs in the cause, and the parties were referred to the Deputy Registrar for pre-trial conference on 28/10/2024.

Key legal issues

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01

Jurisdiction of the ELC over the suit

Holding

The court has jurisdiction since the dispute predominantly concerns ownership and transfer of land

Reasoning

Applying Article 162(2)(b) and Section 13 of the ELC Act, and the predominant purpose test from Suzanne Butler v Redhill Investments, the court held that although a company's shareholding was mentioned, the crux is ownership and fraudulent transfer of land of the deceased's estate. Reliance placed on Paul Nderi Warui v Chrysogon Wang'ondu Nduhiu that company ownership of land does not oust ELC jurisdiction.

p. 6
02

Locus standi of the plaintiffs

Holding

Locus standi cannot be determined via preliminary objection because it requires ascertainment of facts through evidence

Reasoning

The plaintiffs claim beneficial interest in the suit property while the applicants claim purchaser's interest; whether the plaintiffs hold proprietary interest must be ascertained through evidence. Dismissing the suit at this stage would be draconian and would determine the suit via a preliminary objection without hearing the plaintiffs.

p. 7

Legal principles established

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  • Whether a case is a land dispute for ELC jurisdiction is determined by the predominant purpose test
  • A preliminary objection cannot be sustained where facts must be ascertained
  • A court without jurisdiction must down its tools

Court orders

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  1. 1.The two preliminary objections dated 27/02/2024 and 7/03/2024 are dismissed entirely with costs being in the cause
  2. 2.The finding disposes the application by the plaintiffs dated 5/12/2023
  3. 3.Parties are referred to the Deputy Registrar for Pre-trial conference on 28/10/2024

Authorities

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Legislation

  • Succession ActSections 51 and 54; paragraphs 10 and 14 of the Fifth Schedule
  • Probate and Administration RulesRules 7 and 12
  • Companies ActSections 238, 239, 240 and 3
  • Constitution of KenyaArticles 162(2)(b), 42, 69, 70
  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 40

Cases cited (12)

  • Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd
    (1969) EA 696
  • Mwalungu Mwambui Nyiyo & 201 others v Total Oil Products (East Africa) Limited & another
    (2021) eKLR
  • Attorney General & another v Andrew Mwaura Githinji & another
    [2016] eKLR
  • Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others
    [2015] eKLR
  • Owners of the Motor Vessel ‘Lillian’ (S) v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Suzanne Butler & 4 others v Redhill Investments & another
    (2017) eKLR
  • Paul Nderi Warui & 24 others v Chrysogon Wang’ondu Nduhiu & 3 others
    (2021) eKLR
  • Law Society of Kenya v Commissioner of Lands & others
    Nakuru High Court Civil Case No 464 of 2000
  • Alfred Njau and others v City Council of Nairobi
    (1982) KAR 229
  • Quick Enterprises Ltd v Kenya Railways Corporation
    Kisumu High Court Civil Case No 22 of 1999
  • Presbyterian Foundation & another v East Africa Partnership Ltd & another
    [2012] eKLR
  • Wilmot Mwadilo, Edwin Mwakaya, Amos Nyatta & Patrick Mbinga v Eliud Timothy Mwamunga & Sagalla Ranchers Limited
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muumbo & another (C/o Muigai Kemei & Associates Advocates) v Mwingi View Point Lodge Limited & 8 others (Environment & Land Case 10 of 2023) [2024] KEELC 6921 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6921/eng@2024-10-22

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