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ELCStruck OutELC E024/2025· [2025] KEELC 6829 (KLR)

Montet v Leposo 2 others (All Sued as Administrators of the Estate of Idd Maimbu Hassan (Deceased)) & 3 others (Environment and Land Case E024 of 2025) [2025] KEELC 6829 (KLR)

Environment and Land Court
3 October 2025
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a landowner's entire suit because his real dispute was with a succession court ruling, not a trespass claim.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.D. Mwangi J) determines a Notice of Motion dated 10th March 2025 by the Plaintiff, Dr. Ali Kolela Montet, seeking injunctive and inhibition orders to restrain the Defendants from interfering with his occupation, possession and ownership of land parcel Ngong/Ngong/44327, together with a Preliminary Objection dated 4th June 2025 by the 3rd and 4th Defendants through the Hon. Attorney General contesting the court's jurisdiction. The 2nd Defendant, Shaban Edi Leposo, opposed the motion, tracing the suit parcel to the estate of the late Paramount Chief Iddi Hassan Malambu and contending that the Plaintiff's title was revoked by a ruling of Nyakundi J in Succession Cause No. 64 of 2016 delivered on 19th March 2018, after which the property was transmitted to him under a confirmed grant issued on 1st November 2018. The Plaintiff maintained the 2018 ruling did not cancel his title and alleged fraudulent transfer. The court dealt first with the Preliminary Objection. Applying Mukisa Biscuit, Owners of the Motor Vessel 'Lillian S' and Republic v Karisa Chengo, it held that although the claim was framed as trespass, its substratum was the revocation of the Plaintiff's title in the succession cause, so entertaining it would amount to sitting on appeal over the succession court. The court held it was divested of jurisdiction, upheld the Preliminary Objection, and struck out the Notice of Motion together with the entire suit, with costs to the Defendants.

Key legal issues

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01

Whether the ELC had jurisdiction over a trespass claim whose substratum is the revocation of title in a succession cause

Holding

The court was divested of jurisdiction; the dispute fell within the exclusive domain of the Succession Court under the Law of Succession Act

Reasoning

Though framed as trespass, the claim required the court to interrogate the validity of the revocation of the Plaintiff's title by the succession court and the redistribution of the estate. That would amount to sitting on appeal over rulings of Nyakundi J and Chacha Mwita J in the succession cause, which the ELC cannot do. Jurisdiction over confirmation and revocation of grants vests in the High Court under section 47 of the Law of Succession Act.

p. 4
02

Whether the Preliminary Objection was properly a point of law

Holding

Yes - it raised jurisdiction, a central issue in every matter before the court

Reasoning

Applying Mukisa Biscuit, an objection to jurisdiction is a classic preliminary objection that may dispose of the suit in limine. The court therefore dealt with it before the merits of the Notice of Motion.

p. 2

Legal principles established

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  • A preliminary objection is a point of law which, if argued as a preliminary point, may dispose of the suit
  • Jurisdiction is central to every matter; a court without jurisdiction must down tools immediately
  • Specialized courts of equal status with the High Court cannot exercise jurisdiction reserved for the High Court

Court orders

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  1. 1.The Preliminary Objection dated 4th June 2025 is hereby upheld.
  2. 2.This Court is without jurisdiction to entertain and determine this matter, the same falling within the exclusive domain of the Succession Court under the Law of Succession Act.
  3. 3.The Plaintiff's Notice of Motion dated 10th March 2025 together with the entire suit is struck out with costs to the Defendants.
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Montet v Leposo 2 others (All Sued as Administrators of the Estate of Idd Maimbu Hassan (Deceased)) & 3 others (Environment and Land Case E024 of 2025) [2025] KEELC 6829 (KLR)", Case Analysis (2025). ELC E024/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6829/eng@2025-10-03

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