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High CourtOtherSuccession Cause (Kakamega) - grant issued 23rd November 2012; summons dated 8th May 2013

In re Estate of Mikola Mati Ateya alias Nikola Mati Ateywa (Deceased)

High Court of Kenya

24 January 2020

WMW. Musyoka

2,348 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

If a land ownership dispute arises during an estate settlement, the High Court cannot decide who owns the property; it must go to the Environment and Land Court.

What this practically means

Executive summary

This was a succession cause in the High Court at Kakamega concerning the estate of Mikola Mati Ateya, who died on 23rd July 1995. Letters of administration intestate were issued to the widow, Jane Namalwa Mati, on 23rd November 2012, unconfirmed. Abraham Mango Mateteh and Saleh Sifuna Mango applied by summons dated 8th May 2013 seeking that dealings in Sidikho/Bunyala/1253 be prohibited, that the property be removed from the schedule of estate assets, and that the administratrix's name be removed from the register. They claimed to have bought the land in 1998 from Leo Wafula, the deceased's son, and alleged the administratrix had fraudulently removed their names from the register after obtaining representation. The administratrix denied any sale, asserting the applicants were only lessees, and pointed to inconsistencies in the dates of the alleged transactions. Interim prohibitory orders were issued on 21st May 2013. The parties agreed the application be determined on affidavits. The court framed the sole issue as ownership of the land as between the estate and the applicants. Holding that the High Court has no jurisdiction under Articles 162(2) and 165(5) of the Constitution to determine title to land, and that such disputes belong exclusively to the Environment and Land Court under section 13 of the Environment and Land Court Act, the court declined to strike out the cause or remove the property from the estate schedule. It directed the parties to litigate ownership in the Environment and Land Court, restrained distribution of the property pending that determination, continued the interim orders, set a mention after 366 days, and allowed twenty-eight days to appeal to the Court of Appeal.

Key legal issues

Jurisdiction of the High Court over land ownership disputes arising in a succession cause

Holding

The High Court lacks jurisdiction to determine ownership of land; that jurisdiction vests exclusively in the Environment and Land Court under Article 162(2) and Article 165(5) of the Constitution and sections 101 of the Land Registration Act and 150 of the Land Act.

Reasoning

Article 162(2) vests disputes relating to title to land in courts of equal status with the High Court, while Article 165(5) bars the High Court from such matters. Parliament established the Environment and Land Court under the Environment and Land Court Act, whose section 13 confers exclusive original and appellate jurisdiction over land disputes, including title, contracts and instruments granting interests in land.

p. 2

Treatment of third-party purchaser claims in succession proceedings

Holding

Purchasers and creditors are not entitled to the net estate; disputes with them must be resolved in separate proceedings, and the succession court should not determine ownership as between the estate and a purchaser.

Reasoning

A succession cause exists to distribute the net estate to heirs, survivors and dependants provided for in the Law of Succession Act. Distribution occurs only after debts, liabilities, purchasers and creditors are settled. The applicants did not claim to be heirs or beneficiaries, so their ownership claim could not be resolved within the cause.

p. 2

Legal principles established

The High Court has no jurisdiction to determine ownership of registered land; such disputes fall within the exclusive jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act.
Disputes between an estate and third-party purchasers or creditors over estate assets ought to be resolved in separate proceedings, not within the succession cause.

Court orders

1.Declared that the Judge of the High Court does not have jurisdiction to determine ownership of Sidikho/Bunyala/1253 as between the estate and the applicants
2.Directed the administratrix and the applicants to place the dispute on ownership of Sidikho/Bunyala/1253 before the Environment and Land Court for determination
3.Ordered that Sidikho/Bunyala/1253 shall not be distributed unless and until the status of its ownership is resolved by the Environment and Land Court or until further orders of the court
4.Directed that the cause be mentioned after 366 days to confirm compliance and for further directions
5.Ordered that the temporary orders made on 21st May 2013 remain in force pending compliance or until further orders
6.Granted any aggrieved party twenty-eight days to file an appeal at the Court of Appeal

Jurisdiction invoked: Law of Succession Act, Cap 160; Articles 162(2) and 165(5) of the Constitution on limitation of High Court jurisdiction over land disputes

Key timeline

Practical implications

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Cite this brief

Caselaw, "In re Estate of Mikola Mati Ateya alias Nikola Mati Ateywa (Deceased)", Case Analysis (2020). Succession Cause (Kakamega) - grant issued 23rd November 2012; summons dated 8th May 2013. Source:

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