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ELCStruck OutAppeal from Kakamega MCLE No. E29 of 2020· [2025] KEELC 4367 (KLR)

Alucho & another v Shisumu (Environment and Land Appeal E022 of 2023) [2025] KEELC 4367 (KLR)

Environment and Land Court
21 May 2025
ANA. NYUKURI
3,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land appeal because disputes over matrimonial property and spousal consent belong in the Magistrates Court or High Court.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against the judgment of the learned Senior Principal Magistrate (Z.J Nyakundi, SPM) delivered on 4th September 2023 in Kakamega MCLE No. E29 of 2020, in which the trial court found that the respondent was the 1st appellant's wife, that her spousal consent was required before the sale of parcel Butsotso/Shikoti/17670, and that the transfer to the 2nd appellant was irregular for want of such consent. The appellants contended that the transfer on the register was from a third party (Johnstone Kulundu Mukubi), that no fraud or misrepresentation had been pleaded or proved, and that the trial court relied on extraneous matters; the respondent maintained the property was her matrimonial home requiring her consent under section 28(a) of the Land Registration Act. Before determining the merits, the court examined its own jurisdiction, applying Owners of Motor Vessel 'Lilian S' and Samuel Kamau Macharia. Holding that the dispute was essentially a matrimonial property claim governed by the Matrimonial Property Act and the Matrimonial Property Rules 2022 (Rules 6 and 7), whose proper fora are the Magistrates Court (within pecuniary jurisdiction) or the High Court, the court found that the subject matter fell outside the ELC's mandate under Article 162(2)(b) and section 13 of the ELC Act. The appeal was accordingly struck out with no order as to costs given the parties' marital relationship. The merits of the matrimonial property and spousal consent questions were left undetermined.

Key legal issues

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Whether the ELC had jurisdiction over an appeal turning on matrimonial property rights and spousal consent

Holding

The court lacked jurisdiction; such claims belong to the Magistrates Court (within pecuniary jurisdiction) or the High Court under the Matrimonial Property Act and Rules 6 and 7 of the Matrimonial Property Rules 2022

Reasoning

The dispute centred on whether the suit property was matrimonial property and whether spousal consent was required for its alienation under sections 2, 6, 7 and 12 of the Matrimonial Property Act. Although the ELC's jurisdiction under Article 162(2)(b) and section 13 of the ELC Act covers title to land, the court held the claim fell within the specific matrimonial property regime, whose fora are prescribed by the Matrimonial Property Rules. Jurisdiction being everything, the appeal was struck out.

p. 9

Legal principles established

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  • A dispute over whether property is matrimonial property and whether spousal consent was required for its sale falls within the jurisdiction of the Magistrates Court and the High Court, not the Environment and Land Court
  • Jurisdiction flows from the Constitution or statute and a court cannot arrogate to itself jurisdiction it does not have

Court orders

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  1. 1.The appeal is struck out for want of jurisdiction
  2. 2.No order as to costs
On appeal from
Magistrates Court, Kakamega
Kakamega MCLE No. E29 of 2020
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with 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, "Alucho & another v Shisumu (Environment and Land Appeal E022 of 2023) [2025] KEELC 4367 (KLR)", Case Analysis (2025). Appeal from Kakamega MCLE No. E29 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4367/eng@2025-05-21

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