Wanyonyi & another v Masoni & another (Environment and Land Case 160 of 2017) [2025] KEELC 6251 (KLR)

The applicants did not cite Order 2 Rule 15 of the Civil Procedure Rules, the only provision for striking out pleadings. The counterclaim was filed pursuant to leave granted by the court on 17th July 2025, was strenuously opposed but no appeal was preferred, and the plaintiffs filed a defence to the counterclaim, which rendered the suit ripe for hearing. The counterclaim raises triable issues on land ownership.

Under Section 5 of the Judicature Act, superior courts exercise contempt jurisdiction as in England. Order 52 rule 2 of the Rules of the Supreme Court requires leave for contempt applications, with notice to the Crown Office (equivalent of the Attorney General). The applicants sought no leave and cited no relevant provisions of the Judicature Act, so the contempt jurisdiction was not properly invoked.

The 1st Defendant was issued with a Certificate of Confirmation of Grant confirming her appointment as sole administrator of the estate of Ben Masoni, as per her list of documents dated 23rd May 2018. That certificate confers on her the capacity to agitate rights and interests on behalf of that estate.

The amended defence and counterclaim dated 23rd July 2025 was filed with leave of the court. The plaintiffs did not appeal against that leave but instead filed a defence to the counterclaim on 16th September 2025, paving the way for hearing. They cannot therefore resile and argue limitation against a counterclaim filed by leave.

Article 162(2)(b) of the Constitution establishes courts with the status of the High Court to hear disputes relating to the environment and the use, occupation of and title to land. Section 13 of the ELC Act grants the court original and appellate jurisdiction over all such disputes, including title and land administration. The dispute between the administrators of the estate of Reuben Wanyonyi and the estate of Ben Masoni over Plot 74 is a title dispute within this jurisdiction.

Having reviewed the proceedings, the court agreed with counsel for the 1st Defendant that the issues of jurisdiction, statute of limitations and capacity had already been heard and determined in a ruling delivered on 27th February 2025, and were therefore res judicata.