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ELCOtherNot stated in the judgment as provided· [2025] KEELC 5460 (KLR)

Lemagon & another (Suing as the personal representatives of the Estate of the Late Lodoviko Cheptoo Rotich alias Cheptoo Rotich alias Lotobiko Cheptoo Rotich - Deceased) v Komen (Sued as the Legal Administrator of the Estate of Late Constantina Kabon Komen - Deceased) & 2 others (Environment and Land Case E009 of 2024) [2025] KEELC 5460 (KLR)

Environment and Land Court
9 July 2025
LWL. N. Waithaka
2,262 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land court paused a family property dispute because the right fix—revoking a succession grant—was already underway in another court.

What this practically means

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Executive summary

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The plaintiffs, representing the Estate of Lodoviko Cheptoo Rotich, sued seeking declarations that the registration of the suit property (Irong/Iten/382) in the name of the 1st defendant stood revoked following the High Court's order of 5 November 2020 in Eldoret High Court Probate & Administration Succession Cause No. 159 of 2013, cancellation of the title, reinstatement of the deceased's name, and injunctions. The suit alleged that the 1st defendant fraudulently included the suit property as part of the Estate of Constantina in Iten SPMC Succession Cause No. E013 of 2022, leading to its distribution to Constantina's beneficiaries. The 1st defendant filed a preliminary objection contending that the court lacked jurisdiction as succession matters belong to the High Court, and that the suit was sub judice. Written submissions were directed. The court held that although the plaintiffs could properly challenge the title in the Environment and Land Court on grounds of fraud and irregularity, their own plaint acknowledged that summons for revocation of the impugned grant were already pending before the Succession Court. Continuing both proceedings risked conflicting orders on the propriety of the grant and the distribution of the property. The court stayed hearing of the suit and the accompanying application pending the outcome of the succession proceedings, and ordered that costs of the preliminary objection abide the outcome of the suit.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a claim to cancel title to estate land allegedly fraudulently administered through a succession cause

Holding

The court recognised the plaintiffs could challenge title in the ELC but exercised discretion to stay the suit because the issue of misrepresentation/irregularity is already before the Succession Court via pending revocation summons

Reasoning

The court noted the High Court order of 5 November 2020 reverting the suit property to the Estate of Lodoviko, the 1st defendant's subsequent inclusion of the property in the Estate of Constantina's succession, and the plaintiffs' own averment that they filed summons for revocation of the impugned grant. Allowing both proceedings to continue risked conflicting orders on the propriety of the grant and the distribution of the property.

p. 5
02

Whether the plaintiffs acknowledged a pending suit capable of resolving the dispute

Holding

Yes - paragraph 19 of the plaint acknowledged the filing of summons for revocation and/or annulment of the grant in Iten SPMC Succession Cause No. E013 of 2022

Reasoning

The plaintiffs' own pleading confirmed the existence of pending succession proceedings in which some of the issues in the suit may be resolved, grounding the stay order.

p. 5

Legal principles established

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  • Where a pending succession cause addresses the irregularity relied on in a land suit concerning estate property, the land court may stay the suit to avoid conflicting orders

Court orders

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  1. 1.Stay of hearing and determination of the suit and the application accompanying it pending the hearing and determination of the case/proceedings referred to in paragraph 19 of the plaint (the summons for revocation/annulment of the grant in Iten SPMC Succession Cause No. E013 of 2022)
  2. 2.Costs of the preliminary objection to abide the outcome of this suit

Authorities

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Legislation

  • Law of Succession ActSection 47
  • Law of Succession ActSection 71
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 165(5)
  • Civil Procedure Act/RulesSection 6
  • Probate and Administration RulesRule 42(2)
  • Land Registration ActSection 26

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    1969 EA 696
  • Salome Wambui Njau (Suing as an Administratrix of the Estate of Peter Kiguru Njuguna (Deceased) vs. Caroline Wangui Kiguru
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution considered in the preliminary objection

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, "Lemagon & another (Suing as the personal representatives of the Estate of the Late Lodoviko Cheptoo Rotich alias Cheptoo Rotich alias Lotobiko Cheptoo Rotich - Deceased) v Komen (Sued as the Legal Administrator of the Estate of Late Constantina Kabon Komen - Deceased) & 2 others (Environment and Land Case E009 of 2024) [2025] KEELC 5460 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5460/eng@2025-07-09

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