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ELCOtherELC Case of 2023 (Kitale) - number not stated in the extract· [2025] KEELC 1443 (KLR)

Indiazi & another (Suing as Legal Representatives of the Estate of the Late Jotham Indiazi Mbongo) v Mtange & 2 others (Environment & Land Case 10 of 2023) [2025] KEELC 1443 (KLR)

Environment and Land Court
18 March 2025
4,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale dismissed an attempt to throw out a family land dispute, confirming the case should be heard on its merits.

What this practically means

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Executive summary

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The Plaintiffs, legal representatives of the Estate of Jotham Indiazi Mbongo, sued the administrators of the Estate of the late Stephen Mutange Mbongo and Tom Amdavi. They pleaded that the two deceased, together with Tom Amdavi, purchased land from a settler in 1964 and were registered as tenants in common in equal shares over 1060 acres; that Amdavi executed a power of attorney in favour of Stephen Mtange; and that the families agreed in 2015 to share the land as 560 and 500 acres before conversion to freehold. They sought rectification, amalgamation, surrender and subdivision of the titles, with costs borne by the two estates. The 1st Defendant raised a five-ground preliminary objection: limitation under Section 7 of the Limitation of Actions Act; lack of jurisdiction under Order 37 Rule 1(f) of the Civil Procedure Rules; non-joinder of the Land Registry; risk of reviewing orders in the two pending succession causes; and frivolity under Order 2 Rule 15. Applying the Mukisa Biscuits test, the court held that the first three grounds were pure points of law and rejected each: there was no claim for recovery of land; Order 37 Rule 1(f) did not oust the ELC's jurisdiction under Section 13 of the ELC Act; and non-joinder does not defeat a suit. The remaining two grounds required factual enquiry and were not valid preliminary objections. The court, however, questioned from the pleadings how non-owners could subdivide another's property, noting that if Amdavi is presumed dead under Section 118A of the Evidence Act, his distinct tenant-in-common share devolves under Section 39 of the Law of Succession Act, failing kindred to the sixth degree, upon the State. The objection was dismissed with costs to the Plaintiffs, and the matter was set for further directions on 2nd April 2025.

Key legal issues

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01

Whether the suit is time-barred under Section 7 of the Limitation of Actions Act

Holding

Not time-barred; the provision applies to actions for recovery of land, and no such claim is pleaded

Reasoning

Section 7 bars actions to recover land after twelve years. The court found the plaint raises no claim for recovery of land from a party in adverse possession; the relief sought is amalgamation, rectification and surrender of title, which is not recovery, and the Defendants are not sued as being in possession of the Plaintiffs' land.

p. 7
02

Whether the Court lacks jurisdiction under Order 37 Rule 1(f) of the Civil Procedure Rules

Holding

No jurisdictional ouster; the provision, read with Section 13 of the ELC Act, grounds the claim in the Court's jurisdiction

Reasoning

The court held that Order 37 Rule 1(f), concerning originating summonses by executors and administrators, does not oust the ELC's jurisdiction. Determination of title to land squarely lies within the ELC's jurisdiction under Section 13 of the Environment and Land Court Act, pursuant to Article 162(2)(b) of the Constitution.

p. 6
03

Whether failure to join the Land Registry renders the suit incompetent

Holding

No; a suit is not defeated by non-joinder, and a necessary party can be joined under Order 1 Rule 10

Reasoning

The 1st Defendant did not establish that the Land Registrar is a necessary party. Order 1 Rule 9 provides that no suit shall be defeated by misjoinder or non-joinder, and Order 1 Rule 10 governs joining necessary parties. The contention therefore held no water and was dismissed.

p. 6
04

Whether the remaining grounds (frivolous suit, review of concurrent-jurisdiction orders) are valid points of law

Holding

No; they require analysis of factual information and thus are not proper preliminary objections

Reasoning

The grounds relating to the two Succession Causes and Order 2 Rule 15 require the court to analyse the content of the succession matters and receive factual information on how the suit is vexatious or frivolous. Only the limb concerning disclosure of a reasonable cause of action is measured purely against the law.

p. 5

Legal principles established

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  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or discretion exercised
  • A cause of action is not defeated by misjoinder or non-joinder of parties
  • Where a co-owner registered as tenant in common has not been seen for seven years, the presumption of death under Section 118A of the Evidence Act applies, and his distinct share devolves on his estate under the Law of Succession Act; failing kindred to the sixth degree, it devolves on the State
  • Parties who are not owners of property cannot on their own subdivide another's property and own it to the exclusion of the owner

Court orders

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  1. 1.The preliminary objection dated 9th December 2024 is dismissed in its entirety
  2. 2.Costs of the preliminary objection are awarded to the Plaintiffs
  3. 3.The matter to be mentioned on 2nd April 2025 before the Judge in Kitale for further directions as to compliance

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Civil Procedure Rules, 2010Order 37 Rule 1(f)
  • Civil Procedure Rules, 2010Order 1 Rule 9
  • Civil Procedure Rules, 2010Order 1 Rule 10
  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Civil Procedure Rules, 2010Order 2 Rule 12(1)
  • Civil Procedure Rules, 2010Order 3 Rule 5
  • Limitation of Actions ActSection 7
  • Evidence ActSection 118A
  • Law of Succession ActSection 39(1) and (2)
  • Land Registration ActRepeal context (surrender and conversion provisions)
  • Registration of Titles ActSurrender and conversion process (repealed but subsisting provisions)

Cases cited (4)

  • Mukisa Biscuits Manufacturing Ltd. vs West End Distributors Ltd
    [1969] E. A. 696
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] e KLR
  • Susan Wairimu Ndiangui V Pauline W. Thuo & Another
    [2005] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution 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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Cite this brief

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Cite this brief

Caselaw, "Indiazi & another (Suing as Legal Representatives of the Estate of the Late Jotham Indiazi Mbongo) v Mtange & 2 others (Environment & Land Case 10 of 2023) [2025] KEELC 1443 (KLR)", Case Analysis (2025). ELC Case of 2023 (Kitale) - number not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1443/eng@2025-03-18

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