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ELCStruck OutNot stated in judgment· [2025] KEELC 3867 (KLR)

Bitah & 3 others v Bita & 2 others (Environment & Land Case E010 of 2024) [2025] KEELC 3867 (KLR)

Environment and Land Court
24 April 2025
BEB M Eboso
1,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Daughters excluded from inherited land must challenge the distribution in the succession court that handled the estate, not the land court.

What this practically means

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Executive summary

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The 1st and 3rd defendants raised a preliminary objection dated 15/1/2025 seeking striking out of the plaintiffs' suit on grounds that it concerned administration of a deceased's estate, exclusively within probate jurisdiction under the Law of Succession Act, and that the plaintiffs should instead have sought revocation of the grant under Section 76 of the Act read with Rule 44 of the Probate and Administration Rules. The plaintiffs, sisters of the 1st and 2nd defendants and daughters of the late Mbita Mbogori, framed their claim as one of fraud and breach of customary trust concerning parcels 1238-1242, subdivisions of Karingani/Mugirirwa/324 registered in the deceased's name. They alleged the 1st defendant secretly procured a distribution of the estate excluding the daughters, and sought annulment of the resulting titles. The court framed two questions: whether the dominant issue was succession of the estate, and whether the court had jurisdiction. It found the suit was in substance a challenge to the certificate of confirmation of grant dated 31/6/1995 and the distribution it effected; the succession court seized of Embu SPMC Succession Cause No 175 of 1994 was the proper forum to revisit distribution and annul the impugned registrations. The court noted the position would differ had the plaintiffs sued the estate alleging the deceased held the land as trustee. The preliminary objection was upheld and the suit struck out for want of jurisdiction, with each party bearing their own costs in light of the blood relationship and the alleged conduct of the 1st and 3rd defendants.

Key legal issues

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01

Dominant issue in the suit

Holding

The suit is essentially a succession dispute over the distribution of the estate of the late Mbita Mbogori, notwithstanding its framing in fraud and customary trust.

Reasoning

The plaintiffs' complaint is that the 1st defendant secretly initiated succession proceedings and procured a distribution excluding the daughters, and they seek annulment of the resulting titles so provision can be made for them. The 2nd defendant's admission reinforces the succession character of the dispute. The court found the grievance targets the certificate of confirmation of grant, making distribution the dominant issue.

p. 3
02

Proper court to adjudicate the dispute

Holding

The Environment and Land Court lacks jurisdiction; only the succession court seized of Embu SPMC Succession Cause No 175 of 1994 can revisit distribution and annul the impugned registrations.

Reasoning

The succession court is vested with jurisdiction to revisit distribution and to annul registrations flowing from the certificate of confirmation of grant, including subsequent transfers. Reviewing succession orders of a succession court would be exercising jurisdiction the ELC does not have. The court noted the position would differ had the plaintiffs sued the estate alleging the deceased held the land as trustee.

p. 3

Legal principles established

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  • Where the dominant issue in a suit is the distribution of a deceased's estate, the succession court seized of the cause has exclusive jurisdiction to revisit distribution and annul resulting registrations.
  • A plaintiff alleging the deceased held land as trustee must sue the estate of the deceased; a claim framed against the beneficiaries alone cannot survive a jurisdictional objection.

Court orders

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  1. 1.The preliminary objection dated 15/1/2025 is upheld to the extent that the court lacks jurisdiction over the succession dispute
  2. 2.The suit is struck out for want of jurisdiction
  3. 3.Each party to bear their respective costs of the suit
Jurisdiction invoked
Not expressly invoked; objection founded on the Law of Succession Act (exclusive probate jurisdiction)

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, "Bitah & 3 others v Bita & 2 others (Environment & Land Case E010 of 2024) [2025] KEELC 3867 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3867/eng@2025-04-24

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