Njagi v Njeru & 2 others (Environment and Land Appeal E017 of 2024) [2025] KEELC 7742 (KLR)

has jurisdiction to hear and determine the claim. The Appellant sought to have the ruling dated 4 4 2024 set aside and for the suit to be reinstated for hearing on merit. 3. The appeal was canvassed through written submissions. The Appellant submitted that he filed the suit in his capacity as the administrator of the Estate of his late father, Njagi Njeru and his contention in the pleadings is that the suit land, which belonged to his late father, had been fraudulently dealt with by the Respondents who impersonated his late father. He submitted that in the plaint he sought cancellation of the 1st Respondent’s title. 4. The Appellant submitted that the Learned Magistrate contradicted herself in the ruling when she found that the suit was over land and property of a deceased person and that it should be governed by the Law of Succession Act and the case ought to be heard by the probate court. The Appellant pointed out that the Learned Magistrate made a finding in the ruling that the suit land was registered in the 1st Respondent’s name who is alive and well. He reiterated that the jurisdiction of the probate court is limited to the distribution of the estate of a deceased person. 5. The Appellant relied on Section 26 of the ELC Act and cited Re Estate of Atibu Oronje Asioma (Deceased) (2022) eKLR on the point that the design of the Law of Succession Act is that the mandate of the probate court is limited to distribution of assets and where a dispute arises over the ownership of any asset, that issue should be placed before another forum for determination but not in the succession cause. The Appellant explained that he initially filed his claim before the ELC at Embu and the court transferred the suit to the Siakago Magistrate’s Court for hearing and determination by consent of the parties. 6. The Appellant maintained that the Siakago Magistrates Court had jurisdiction to hear and determine his claim. The Appellant cited W& Another V N (2024) eKLR where the court analysed Section 26 (3) (4) of the ELC Act pursuant to which some magistrates have been designated to have jurisdiction in civil matters involving the occupation of and title to land. 7. The 1st Respondent submitted that the issue for determination was whether the Learned Magistrate sitting as the ELC erred by finding that she lacked jurisdiction to entertain the suit and striking it out. He profiered that it was not in dispute that the plaint was filed after the grant of letters of administration had been confirmed on 11 7 2014. The 1st Respondent relied on the Practice Directions on proceedings in the ELC, and on proceedings relating to the environment and use and occupation of, and title to land, and proceedings in other courts which delineate the jurisdiction of ELC and of probate court. He went on to add that the directions stipulate that all cases touching on inheritance, succession and distribution of land under the Law of Succession Act shall continue to be filed and heard by the High Court or the Magistrate of competent jurisdiction. 8. The 1st Respondent maintained that his preliminary objection dated 15 9 2023 was that the Learned Magistrate sitting as the ELC lacked jurisdiction to hear and determine the suit by virtue of Section 71 (2) of the Law of Succession Act, Rule 41 of the Probate and Administration Rules as well as Order 37 Rule 1 of the Civil Procedure Rules. 9. The 1st Respondent submitted that it was not disputed that the Appellant became aware that the 1st Respondent was registered as proprietor of the suit land on 10 6 2014. It was contended that he failed to proceed in accordance with Section 71 (2) of the Law of Succession Act, Rule 41 of the Probate and Administration Rules and failed to notify the probate court through an application to postpone confirmation of the grant pending issue of further citations or otherwise and to set aside the particular share or the property comprising it to abide the determination of the question and proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7742/eng@2025-10-22 2

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10. It was also urged that the Appellant failed to proceed in accordance with Order 37 Rule 1 of the Civil Procedure Rules that required him to file an Originating Summons before the ELC to determine ownership of the suit land prior to the confirmation of a grant. The 1st Respondent relied on In re Estate of Julius Ndubi Javan (deceased) (2018) eKLR where the court stated that the primary duty of the probate court was to distribute the estate of the deceased to the rightful beneficiaries, and that where issues of ownership of the property of the estate were raised in a succession cause they must be resolved before that property is distribute. That that was the very reason why Rule 41 (3) of the Probate and the Administration Rules was enacted so that valid claims are determined before confirmation. 11. The 1st Respondent also relied on the Re Estate of Stone Kathuri Muinde (Deceased) (2016) KEHC 3725 (KLR) where the court held that if a decree was obtained in a suit in favour of the claimant then the decree should be presented to the probate court in the succession cause so that that court could give efiect to it. The 1st Respondent submitted that as a result of Appellant’s failure to follow the procedure prescribed by Section 71 (2) of the Law of Succession Act, Rule 41 of the Probate and Administration Rules and Order 37 Rule 1 of the Civil Procedure Rules, the grant was confirmed on 11 7 2014. He urged that the Appellant suit was estopped by those provisions of the law and that the doctrines of laches, acquiescence and waiver applied. He cited decisions on waiver, estoppel and acquiescence. 12. The 1st Respondent reiterated that the Learned Magistrate sitting as an ELC lacked jurisdiction to hear and determine the suit. On this point he relied on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) eKLR and Macharia & Another v Kenya Commercial Bank Limited & 2 others (2012) KESC 8 (KLR) (23 October 2012) (ruling). The 1st Respondent sought the costs of the appeal. 13. In his submissions, the 2nd Respondent gave the background to the dispute and summarised the prayers sought before the trial court. According to the 2nd Respondent the Learned Magistrate properly exercised her mandate based on Section 71 (2) of the Law of Succession Act and Rule 41 of the Probate and Administration Rules. The 2nd Respondent submitted that the probate court had jurisdiction to handle more matters than the distribution of estates of deceased persons. He contended that matters to deal with a deceased person’s estate are strictly dealt with by the probate court because it had inherent jurisdiction to deal with them. 14. The 2nd Respondent relied on Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd (1989) eKLR and Re Estate of Julius Ndubi Javan (deceased) (2018) eKLR. The 2nd Respondents also cited decisions on what constitutes a preliminary objection and urged that the 1st Respondent raised issues of law in his preliminary objection and that the objection was properly determined by the trial court. The 2nd Respondent urged the court to dismiss the appeal and award him costs. 15. The issue for determination is whether the appeal is merited and whether the ruling of the trial court that it lacked jurisdiction to hear the dispute since it was sitting as the ELC is erroneous. The question of jurisdiction of the court to hear the dispute was taken as a preliminary point before the Learned Magistrate, the 1st Respondent’s contention being that that dispute ought to have been determined by the probate court and not the ELC by virtue of Section 71 (2) of the Law of Succession Act, Rule 41 of the Probate and Administration Rules as well as Order 37 Rule 1 of the Civil Procedure Rules. 16. To appreciate the nature of the claim that was before the trial court, it is helpful to look at the pleadings filed. The Appellant pleaded in the Amended Plaint dated 7 3 2019 that when he was about to distribute the assets of the late Njagi Njeru alias Mbuchi Baragu after confirmation of the grant, he discovered that the 1st Respondent had acquired title over the suit land yet it formed part of the estate of the late Njagi Njeru alias Mbuchi Baragu. He pleaded particulars of fraud against the Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7742/eng@2025-10-22 3

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including impersonation of the late Njagi Njeru alias Mbuchi Baragu and fraud in the acquisition of title over the suit land by the 1st Respondent. 17. The 1st Respondent’s defence according to his defence dated 4 2 2015 is that Njagi Njeru and Mbuchi Baragu are two difierent people and that Mbuchi Baragu did not own the suit land and was never registered as its owner. Further, that Mbuchi Baragu did not occupy or dispute ownership of the suit land during his lifetime. He was emphatic that he lawfully acquired the suit land and that his title is indefeasible. He maintained that the land was not available for distribution by the Plaintifi. 18. The dispute is not over the distribution of the assets of a deceased person, rather the claim is that through fraud, the 1st Respondent caused the suit land to be registered in his name yet the land belonged to the Appellant’s father. That is a question of ownership of the suit land, which falls outside the jurisdiction of the probate court and is the preserve of the ELC under the Constitution and the ELC Act. The orders sought in the suit of eviction, cancellation of title and for the title over the suit land to revert to the estate of the late Njagi Njeru alias Mbuchi Baragu cannot be granted by the probate court. The Learned Magistrate erred in finding that the ELC lacked jurisdiction to determine the dispute. 19. The court allows the appeal. The ruling of the Learned Magistrate delivered on 4 4 2024 in Siakago PM MCELC Case No. 66 of 2018 is set aside. 20. Siakago PM MCELC Case No. 66 of 2018 is reinstated for hearing on merit by a Magistrate in Siakago Law Courts with jurisdiction other than Honourable Njoki Kahara, Principal Magistrate. 21. The Appellant is awarded the costs of the appeal to be borne by the 1st Respondent. DELIVERED VIRTUALLY AT EMBU THIS 22ND DAY OF OCTOBER2025. K. BOR JUDGE In the presence of: Ms. Rose Njeru for the Appellant Mr. Mwaniki Gachuba for the 1st Respondent Mr. I. Kiplimo holding brief for Mr. J. Mwatsuma for the 2nd Respondent Diana Kemboi- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7742/eng@2025-10-22 4

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