Karobere v Mutu & 2 others (Environment and Land Case E019 of 2024) [2026] KEELC 1947 (KLR)

The orders of 19th December 2024 were temporary, issued pending inter partes hearing of the application dated 18th December 2024. Full disclosure of the Mukurwe-ini Succession Cause and the certificate of confirmation of grant was made in the supporting affidavit, defeating the non-disclosure complaint. There were conflicting versions of occupation of the one acre, and the inter partes application - which had already been served, responded to and directed to submissions - should determine whether to confirm or discharge the orders. The present application did not establish sufficient cause to set them aside.

Applying Section 7 of the Civil Procedure Act and the Supreme Court's conditions in Communications Commission of Kenya v Royal Media Services, the Court found the substantive prayer in the Succession Cause was revocation of a confirmed grant and redistribution, not occupation or acquisition of land by adverse possession. The Succession Court held the Plaintiff was not a beneficiary and her purchase was an illegality with refund as her remedy. Moreover, the Magistrates' Court sitting as a Succession Court was not competent to determine adverse possession, injunction and inhibition claims, which belong to the Environment and Land Court under Article 162(2)(b).

The Plaintiff instituted this suit by Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act claiming adverse possession since 1992, whereas the Mukurwe-ini proceedings were a Succession Cause seeking revocation of a grant under the Law of Succession Act. The two proceedings involved different causes of action and different jurisdictions. Authorities of Musyoka J confirm that probate courts cannot determine ownership or third-party disputes, so no abuse of process arose.