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ELCDismissedNot stated in the judgment (Bungoma ELC; related suits referenced: Bungoma HC Succession Cause No. 68 of 1997; Bungoma HCC Succession Cause No. 51 of 2005; Bungoma ELC Case No. 17 of 2006)· [2025] KEELC 968 (KLR)

Wanyonyi & another v Masoni & another (Environment & Land Case 160 of 2017) [2025] KEELC 968 (KLR)

Environment and Land Court
27 February 2025
2,909 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

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Kenya's Environment and Land Court can decide who owns land even where the title came through succession proceedings, and succession rulings don't settle ownership disputes.

What this practically means

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Executive summary

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The Plaintiffs/Applicants, administrators of the estate of Reuben Wanyonyi, moved the Environment and Land Court at Bungoma by Notice of Motion dated 9th December 2024 seeking to strike out the Defendant/Respondent's Amended Defence and Counter-claim on three grounds: lack of jurisdiction, res judicata, and statute barring/abuse of process. They argued that Webuye Municipality Plots No. 74 and 75 had been confirmed as assets of the estate of Reuben Wanyonyi in Bungoma Succession Cause No. 68 of 1997; that when the Respondent included them in the estate of her late husband Ben Masoni in Succession Cause No. 51 of 2005, the High Court ordered their removal and return; and that the Respondent, having not appealed, could not relitigate ownership before the ELC. They further relied on the withdrawal of Bungoma ELC Case No. 17 of 2006 and the 12-year limitation period. The Respondent opposed, contending that a High Court ruling of 25th April 2023 confirmed the ELC's jurisdiction over the plots' ownership, that no suit has been heard and determined on ownership, and that points of law should be raised by preliminary objection. The court, E.C. Cherono, ELC Judge, dismissed the application on 27th February 2025. It held that under Article 162(2)(b) and Section 13(2) of the ELC Act, the ELC has jurisdiction over title disputes even where title was acquired by transmission through succession, since the succession proceedings were not a declaration of ownership. Res judicata failed because no suit had been heard and finally determined on ownership, the High Court having no jurisdiction over title to land. The limitation objection failed because the applicants did not plead when the respondent's right of action accrued, and no prejudice from the amendments was demonstrated. Costs were to be in the cause.

Key legal issues

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01

Jurisdiction of the ELC over land ownership disputes notwithstanding prior succession proceedings

Holding

The ELC has jurisdiction; transmission of title through a confirmed grant was not a declaration of ownership in an inter partes dispute

Reasoning

The court traced its jurisdiction to Article 162(2)(b) of the Constitution and Section 13(2) of the ELC Act, which confers power to hear disputes relating to title, tenure and interests in land. It held that where there is a dispute over how a title was acquired, the ELC may investigate by evidence, including allegations of fraud or illegality (Section 26, Land Registration Act). The succession court's confirmation of grant merely transmitted title; it did not adjudicate ownership between competing claims, so jurisdiction was not ousted.

p. 4
02

Whether the amended defence and counter-claim is res judicata

Holding

It is not; no suit between the parties over ownership of the plots has been heard and finally determined, and the High Court in succession cannot determine title to land

Reasoning

Applying Section 7 of the Civil Procedure Act, the court held that res judicata requires that the matter directly and substantially in issue was heard and finally determined by a competent court. The High Court's ruling removing the plots from the estate of Ben Masoni was not such a determination. The High Court and the ELC have different jurisdictions notwithstanding concurrent status; the applicants' argument was, in the court's view, a hollow interpretation of the law.

p. 5
03

Whether the counter-claim is statute barred under the Limitation of Actions Act

Holding

The applicants failed to demonstrate when the respondent's right of action accrued; the limitation objection could not succeed on the material before the court

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from when the right of action accrued. The court found that the applicants nowhere pleaded when the respondent's alleged right accrued, and their assertion that it accrued upon filing of the withdrawn 2006 suit had no legal basis. Absent that foundational fact, the limitation challenge failed. The court also noted no prejudice was demonstrated and that the applicants had not filed a defence to counter-claim.

p. 6
04

Whether the Amended Defence and Counter-claim should be struck out as an abuse of process

Holding

No; the application lacked merit and was dismissed

Reasoning

The court considered the principles on amendment of pleadings from Joseph Ochieng & 2 Others v First National Bank of Chicago, noting amendments should be allowed howsoever late if made in good faith and costs can compensate. The applicants did not demonstrate prejudice, and the amendment did not change the action into a substantially different character. The application for striking out therefore failed in its entirety.

p. 6

Legal principles established

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  • The jurisdiction of the Environment and Land Court extends to disputes as to ownership and title to land, even where title was acquired by transmission through succession proceedings
  • The High Court in succession proceedings has no jurisdiction to determine disputes relating to title to land; rectification removing property from an estate is not a declaration of ownership
  • An amendment to pleadings should be allowed howsoever late if made in good faith, unless it changes the action into one of a substantially different character or prejudices the opposite party
  • A party alleging limitation must establish when the right of action accrued; limitation cannot be established by mere assertion

Court orders

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  1. 1.The Notice of Motion application dated 9th December 2024 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSections 13(1) & (2)
  • Civil Procedure ActSections 3, 3A, 7, 63(1)
  • Limitation of Actions ActSections 7, 26, 27 & 28
  • Land Registration ActSection 26
  • Civil Procedure RulesOrder 8 Rule 6

Cases cited (6)

  • Virginia Kairigo Runji v Christopher Nthia Gacuthe & 17 Others (2020) KLR
    (2020) KLR
  • Mary Osundwa v Nzoia Sugar Company Ltd
    (2002) eKLR
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (K) Ltd
    (1989) eKLR
  • Mukisa Biscuits Manufacturing Ltd v West End Distributors Ltd
    (1969) E.A 697
  • Abdul Kassim Hassanah Gulamhussein Khala v Southern Credit Banking Corporation Ltd, Mombasa HCCC NO.270 of 2005
  • Joseph Ochieng & 2 Others v First National Bank of Chicago Civil Appeal NO. 149 of 1999
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya; Section 13(1) & (2) 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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Cite this brief

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Cite this brief

Caselaw, "Wanyonyi & another v Masoni & another (Environment & Land Case 160 of 2017) [2025] KEELC 968 (KLR)", Case Analysis (2025). Not stated in the judgment (Bungoma ELC; related suits referenced: Bungoma HC Succession Cause No. 68 of 1997; Bungoma HCC Succession Cause No. 51 of 2005; Bungoma ELC Case No. 17 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/968/eng@2025-02-27

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