Wanyonyi & another v Masoni & another (Environment & Land Case 160 of 2017) [2025] KEELC 968 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over land ownership disputes notwithstanding prior succession proceedings
The ELC has jurisdiction; transmission of title through a confirmed grant was not a declaration of ownership in an inter partes dispute
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.
Whether the amended defence and counter-claim is res judicata
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
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.
Whether the counter-claim is statute barred under the Limitation of Actions Act
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
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nowhere pleaded when the respondent's alleged right accrued, and their assertion that it accrued upon filing of the withdrawn 2006 suit had no legal basis.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.
Whether the Amended Defence and Counter-claim should be struck out as an abuse of process
No; the application lacked merit and was dismissed
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 9th December 2024 is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya; Section 13(1) & (2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.