Elms (Suing as the Personal Representative of the Estate of Roger Bryan Robson - Deceased) v Kagure (Environment and Land Case 80 of 2015) [2025] KEELC 6393 (KLR)

5. On the 10th May, 2019 the Plaintifi filed an application before this court seeking to stay proceedings in the instant suit in view of the ongoing proceedings in Succession Cause no 955 of 2013. This court difierently constituted on the 11th March, 2021 issued orders staying the proceedings in this suit to await the determination of the Succession cause. 6. The Defendant is before the court with the application dated 13th February 2024 praying for the following orders; a. That this application be certified as urgent and service be dispensed with at the first instance b. That this Honourable Court be pleased to review and/or set aside the Ruling and/or order of Honourable Lady Justice L. Komingoi made on 11th March, 2021 granting the Respondent stay orders. c. That the costs of this application be provided for. 7. The application seeks a review of the orders of the court staying the proceedings. In the afidavit in support of the application the Defendant avers that she had filed a notice of withdrawal of the summons for revocation of grant dated 6th February, 2024 and hence sought for review of stay orders to enable determination of the dispute on merit. 8. The Plaintifi opposes this application on the basis that the Defendant herein is still a party in the Succession cause. That although the Defendant alleges that she has withdrawn the Summons for revocation dated 21st September 2017, this Summons was in fact dismissed by the Succession court vide a Ruling delivered by Justice Onyiego on 15th January 2017. It is the case of the Plaintifi that the afidavit of protest filed on 24th March 2015 and summons for revocation dated 16th March 2017 are still pending hence this matter should still be stayed as earlier ordered. 9. The court directed that the application be canvassed by way of written submissions. As at the date of writing the Ruling only the Defendant had complied. Learned counsel submitted that the mandate of the family court is to facilitate collection and preservation of estates, identification of survivors and beneficiaries and distribution of property. On the other hand, matters relating to ownership are the preserve of the Environment and Land court. Counsel urged the court to exercise its inherent power to set aside the orders of stay and allow the matter to proceed as the stay orders had denied the Defendant an opportunity to be heard. 10. Having considered the application, the Replying Afidavit and the submissions filed herein the only issue for determination is whether the court should review and set aside the orders issued by this court on 11th March 2021. 11. The courts power to review is exercised under Section 80 of the Civil Procedure Act thus: Any person who considers himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6393/eng@2025-02-20 2

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12. Further, Order 45, Rule 1 provides: ‘…and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other suficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay’ 13. This application is brought on the basis that there is suficient cause to review the earlier orders of stay of proceedings so as to allow the dispute herein to be ventilated and determined on merits given the High Court guidance that the dispute on ownership be resolved by this court. From the outset it is clear that Order 45 does not define suficient cause but leaves it to the discretion of the court to determine on a case by case basis what amounts to suficient cause. 14. Hon Lady Justice Achode J ( as she then was) advised that the dispute regarding the suit properties can only be heard by this court. This position was reiterated by Hon Justice Onyiego in paragraph 11 of the Ruling dated 15th January 2017. The question the court grapples with is whether there is suficient cause to review the earlier orders issued by this court staying the proceedings herein. 15. It is appropriate to consider whether the Succession court can determine the issue of ownership. Article 162 2(b) establishes the Environment and Land Court to determine disputes relating to Environment, use, occupation and title to land. 16. The jurisdiction of the ELC Court is conferred by Article 162 (2) (b) of the constitution which provides that Parliament shall establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. Pursuant to this provision, Section 13 of the Environment and Land Court Act, 2011 provides that: 13. “(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes? (3) (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land. Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6393/eng@2025-02-20 3

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fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. (4) 17. In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court Article 165 (5) (b) expressly bars the High Court for hearing any matters that fall within the jurisdiction of the Environment and Land Court. The courts have been careful to hear only matters which fall within their mandate. Musyoka J in the case of in re Estate of Atibu Oronje Asioma (Deceased) (Succession Cause 312 of 2008) [2022] KEHC 11046 (KLR) (22 July 2022) posited; “ There is ample case law to the efiect that succession proceedings are not appropriate for determining disputes between the estate and third parties over title to or ownership of assets placed before the court for distribution. One such case is In re estate of Kimani Kimithia [2008] eKLR (Ibrahim J) where it was stated that succession proceedings were not the appropriate way to challenge the title of the deceased to assets said to comprise his estate, on claims that such assets were subject to a trust in favour of the claimant. It was stated that such claims ought to be subjected to separate proceedings, where the claimants have to prove the trust, and thereafter seek revocation of the title or partition, which requires declaratory orders on the existence of the trust.” 18. In the same matter, the learned Judge restated several relevant authorities to wit; In re-Estate of Richard Karanja Javan [2014] eKLR (Musyoka J), In re Estate of James Muiruri kamau (Deceased) [2018]eKLR (Ndng’u J), In re Estates of Henry Njau Ngotho (Deceased) [2020] eKLR (Muchelule J), in re Estate of Julius Ndubi Javan (DECEAsed)[2018] eKLR (Gikonyo J); In re Estate of Stone Kathuli Muinde (Deceased)[2016] eKLR (Musyoka J), In re-the Estate of Kipyego Chepsiro Kolil [2007]eKLR(Ibrahim J) and in Re Estate of Njagi Njeru (Deceased)[2018]eKLR (Muchemi J)” 19. In light of these authorities and in light of the directions by the two Judges in Succession Cause no 955 of 2013 on the appropriate forum to resolve this dispute can this court leave the stay orders in place? I find that this is a case that the court is called upon to exercise its inherent power to do justice. 20. The Court of Appeal had occasion to give guidance on the exercise of the courts inherent power in the case of Kenya Power and Lighting Company versus Benzene Holdings T/A as Wyco Holdings in which the court recounted “The extent of inherent powers of the court was eloquently explained by the authors of the Halsbury’s Laws of England, 4th Edn. Vol. 37 Para. 14 as follows; “ The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and efiectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process … In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6393/eng@2025-02-20 4

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do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” See also Meshallum Waweru Wanguku (supra) 21. The court summed it up thus “This inherent jurisdiction is a residual intrinsic authority which the court may resort to in order to put right that which would otherwise be an injustice. 22. It is my finding that it would be an injustice to deny the parties herein a chance to have their matter heard by allowing the stay orders to remain in place when this court is the appropriate forum to determine the dispute herein. I therefore find that the application has merit and is allowed in the following terms; a. The order staying these proceedings is hereby reviewed and set aside b. The matter to proceed for hearing c. The costs of the application to abide the outcome of the main suit RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF FEBRUARY 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Merylynn Ms Oncharwa for Mr. Nyachoti for Plaintifi/Respondent Mr. Nduati for Mr. Conrad for Defendant/ Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6393/eng@2025-02-20 5

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