Make & 2 others v Maake (Sued as Personal Representative of the Estate of Amenya Misiani Make - Deceased) & 4 others (Land Case E003 of 2025) [2025] KEELC 5080 (KLR)
The bottom line
#The Kisii Environment and Land Court dismissed a family's bid over inherited land because they lacked letters of administration and asked the wrong court to halt succession proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether an interlocutory injunction could issue over the two parcels
Injunction refused - no prima facie case established
Applying Giella v Cassman Brown, the court found the applicants had not demonstrated a prima facie case with a probability of success. The applicants' capacity to sue was unclear: they did not plead that they sued as personal representatives of the estate under a grant, nor as beneficiaries of the confirmed grant, and could not affirm and attack the same grant. Additionally, no search or green card showed any transfer of Bogusero/2098 to the 3rd respondent.
Whether the court could stay execution in the succession cause
Prayer dismissed for want of jurisdiction
The court held that succession matters fall within the High Court's jurisdiction and not that of the Environment and Land Court, so a stay of orders in Nyamira CMCC Succession Cause No. 7 of 2016 could not be granted by this court.
Capacity of the applicants to file suit
Serious unaddressed question of capacity; applicants did not establish capacity as estate representatives or beneficiaries
The court noted two co-existing grants (Kisii High Court Succession Cause No. 241 of 2012 and Nyamira CMCC Succession Cause No. 7 of 2019) and that the applicants did not clarify under which grant, or in what capacity, they sued. Without a grant of representation, they cannot recover estate land; as beneficiaries they would be affirming a grant they simultaneously attack.
Legal principles established
#- Capacity to recover property on behalf of a deceased's estate can only come through a grant of letters of administration
- A party cannot approbate and reprobate - beneficiaries of a confirmed grant cannot simultaneously challenge that grant's validity as the foundation of their suit
- The Environment and Land Court has no jurisdiction to stay execution in succession matters, which are handled by the High Court
Court orders
#- 1.Prayers (4) and (5) of the application dismissed (declarations of ownership not grantable at interlocutory stage)
- 2.Prayer (3) (stay of execution of succession cause orders) dismissed for want of jurisdiction
- 3.The application dismissed in its entirety (injunction refused)
- 4.No orders as to costs - each party to bear own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited); court expressly disclaimed jurisdiction to stay succession causes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Make & 2 others v Maake (Sued as Personal Representative of the Estate of Amenya Misiani Make - Deceased) & 4 others (Land Case E003 of 2025) [2025] KEELC 5080 (KLR)", Case Analysis (2025). Undated application filed 21 January 2025 (plaint filed at Kisii ELC; case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5080/eng@2025-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.