Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedIten SPMC ELC Case No.31 of 2018 (Appeal)· [2025] KEELC 4157 (KLR)

Cheptanui (Suing as the Administrator of the Estate of the Late Sibilina Kosgei who is suing as Administratrix of the Late Cherono Mulwa) v Cherono & 5 others (Civil Appeal 003 of 2022) [2025] KEELC 4157 (KLR)

Environment and Land Court
14 May 2024
2,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff, administratrix of the estate of Cherono Mulwa (deceased), sued the defendants in the magistrates' court seeking declarations that dealings with land parcels Irong/Sergoit/387 and 450 were null and void, injunctions, eviction, inhibition and rectification of the register, alleging the 2nd and 3rd defendants fraudulently registered themselves as proprietors and sold portions to the 4th and 5th defendants. The defendants filed a preliminary objection contending the suit offended Order 37 Rules 1 and 2 of the Civil Procedure Rules and Section 13A of the Government Proceedings Act. The learned trial magistrate did not decide the suit on those grounds; instead, holding that the issues were rooted in a grant in Iten Succession Cause No.6 of 2001, he struck out the suit for want of jurisdiction, advising the parties to file succession proceedings. On appeal, the Environment and Land Court at Iten re-evaluated the material as a first appellate court. It held that the suit raised issues of fraud in the acquisition of land, which are matters for a land court, not a probate court, following David Ngugi Kamau v Waithera. It further held that the preliminary objections were not pure points of law, since the trial magistrate relied on documentary evidence, and that the suit had not abated because the substitution application was filed within one year of the initial plaintiff's death. The court set aside the striking-out order, reinstated the suit for hearing on the merits, and awarded the costs of the appeal to the plaintiff/appellant.

Key legal issues

#
01

Whether the land court had jurisdiction over a suit raising fraud in acquisition of estate land

Holding

The suit raised issues of fraud touching acquisition of rights to estate land, which are better dealt with by a land court, not a Probate and Administration Court.

Reasoning

While the suit emanates from administration of the estate of Cherono Mulwa, the plaintiff pleaded fraud in the acquisition of the suit properties by the defendants. Following David Ngugi Kamau v Waithera, disputes with third parties over ownership of land arising after confirmation/transmission of a grant are outside the succession court's remit and fall within Article 162(2)(b) jurisdiction. The trial magistrate therefore erred in striking out the suit for want of succession jurisdiction.

p. 5
02

Whether the preliminary objection was a proper point of law

Holding

The objections required evidence to determine and were therefore not proper preliminary objections.

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law argued on assumed pleaded facts. The trial magistrate relied on documentary evidence to determine the issues, and the respondents added a ground of abatement not in their notice of preliminary objection. Both the objection grounds and the abatement issue required ascertainment of facts, disqualifying them as preliminary objections.

p. 6
03

Whether the suit abated on the death of the initial plaintiff

Holding

No - the application for substitution was made within one year of the deceased plaintiff's death.

Reasoning

The trial magistrate himself found that the deceased initial plaintiff died on 27th November 2017 and the substitution application was made on 8th August 2018, within a year. Further, following Said Swailem Gheithan Saanum, abatement must be brought to the court's notice, proved and recorded; the legal effect of abatement alone does not dispose of the suit without a court order.

p. 4

Legal principles established

#
  • A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion
  • Disputes over ownership of land arising post-transmission from a succession cause fall within the jurisdiction of the Environment and Land Court, not the probate court

Court orders

#
  1. 1.Set aside the decision of the lower court striking out the plaintiff's suit
  2. 2.Reinstate the suit
  3. 3.Award the costs of the appeal to the plaintiff/appellant

Authorities

#

Legislation

  • Civil Procedure RulesOrder XXXVI Rule 1; Order LIII Rules 1, 2, 3, 4; Order 37 Rules 1, 2, 14, 15; Order 24 (rules 3(2))
  • Government Proceedings Act, Cap 40 Laws of KenyaSection 13A
  • Constitution of KenyaArticle 48; Article 162(2)(b)
  • Environment and Land Court ActSection 13

Cases cited (8)

  • Kenya Bus Service Limited & another vs. Minister for Transport & 2 others
    (2012) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd
    (1969) E.A. 696
  • Said Swailem Gheithan Saanum v. Commissioner of Lands (Sued through Attorney General) & 5 others
    Malindi Civil Appeal No.16 of 2015
  • David Ngugi Kamau vs. Waithera Mohoyo & 4 others
    (2021) eKLR
  • Re Estate of Alice Mumbua Mutua (Deceased)
    (2017) eKLR
  • Selle & another vs. Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Mwanasokoni vs. Kenya Bus Service Ltd
    (1982-88) 1 KAR
  • Kiruga vs. Kiruga & Another
    (1988) KLR 348
On appeal from
Magistrates' Court (Iten SPMC ELC Case No.31 of 2018)
Iten SPMC ELC Case No.31 of 2018
Jurisdiction invoked
First appellate jurisdiction over subordinate court under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act (as discussed in David Ngugi Kamau)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Cheptanui (Suing as the Administrator of the Estate of the Late Sibilina Kosgei who is suing as Administratrix of the Late Cherono Mulwa) v Cherono & 5 others (Civil Appeal 003 of 2022) [2025] KEELC 4157 (KLR)", Case Analysis (2024). Iten SPMC ELC Case No.31 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4157/eng@2025-05-14

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