Lagat v Lelmet & another (Environment and Land Appeal E022 of 2025) [2026] KEELC 3838 (KLR)

(b) Permanent injunction restraining from trespassing on to or interference with the suit land. him any 2. The respondents contend that on 5/4/2025, the appellant, using a tractor KBN 261T, intentionally, unlawfully, and unjustifiably trespassed into the suit parcel, replanted maize seeds thereon, with a view to dispossessing the respondents, who are the rightful shareholders of the estate. Alongside the plaint, the respondents filed a notice of motion dated 11/4/2024, seeking interim orders of injunction. 3. The appellant opposed the application through a preliminary objection, which was also responded to ORIGINAL COPY vide a replying affidavit of Rossy Lelmet and a supplementary affidavit sworn on 19/5/2025, respectively. The appellant’s preliminary objection dated 3/5/2025 was that: (1) The respondents lack locus standi to sue since they are not the administrators of the estate. (2) The court lacks jurisdiction to entertain and determine the suit on matters directly emanating from and which were conclusively determined with the proceedings and order in Kitale High Court Succession Cause No. 137 of 2010. (3) The subject matter, being the distribution, ownership, and occupation JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 2

page 2 of 15

of land forming part of the deceased’s estate, falls within the Family Division of the High Court, which had already issued a certificate of confirmation of grant dated 10/12/2018, thereby adjudicating rights and interests of the estate property. (4) The claim is a disguised appeal or review of the orders issued by the High Court contrary to the law. (5) The respondents have no cause of action concerning land distribution until the grant is revoked, annulled, or varied by the Family Division of the High Court, rendering the suit incompetent and an abuse of the court. 4. The appellant, by a memorandum of appeal dated 14/7/2025, faults the trial court for: ORIGINAL COPY (1) Holding that it had jurisdiction to hear and determine the suit. (2) Holding that the respondents have locus standi to institute the suit, yet they are not the administrators of the deceased’s estate. 5. This appeal was canvassed through submissions. The appellant submissions dated 31/3/2026, relies written on written isolating three issues for the court’s determination. It is submitted that only a succession court has jurisdiction to determine all matters relating to the administration of estates, including the identification JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 and 3

page 3 of 15

distribution of assets to the beneficiaries under the Law of Succession Act, as held in Trouistik Union International & Another -vs- Jane Mbeyu & Another [1993] eKLR and in Re Estate of Alice Mumbua Mutua (deceased) [2017] eKLR. 6. In this appeal, it is submitted that though jurisdiction is primordial as held in Owners of Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd [1989] KLR 1, the trial court proceeded to determine the claim framed as trespass without first addressing the underlying questions of ownership as held in Kiebia -vs- M’Lintari & Another [2018] eKLR. 7. The appellant submits that courts, as held in ORIGINAL COPY Republic -vs- Paul Kihara Kariuki; Attorney General & Others Ex parte Law Society of Kenya [2021] eKLR, must avoid situations of inconsistent findings on the same subject matter by different courts and also where there is the nonexhaustion doctrine as held in Speaker of National Assembly -vs- Karume [1992] KLR 21, and or on the arrogation of jurisdiction which a court does not have as held in S.K. Macharia & Another -vs- Kenya Commercial Bank Ltd & Others [2012] eKLR. JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 4

page 4 of 15

8. The appellant submits that the trial court, though it may have jurisdiction on a trespass claim, encroached on the powers of the High Court as to the validity of the grant, where the dispute was linked to a pending succession cause, and therefore the proper course would have been to refer to the High Court or to stay the proceedings pending the determination of the succession cause. 9. On locus standi, the appellant submits that the respondents lack the capacity since they are not the legal administrators of the estate of the deceased. Reliance is placed on Law Society of Kenya -vsCommissioner of Lands & Others [2010] eKLR, and in Trouistik Union International & Another ORIGINAL COPY -vs- Jane Mbeyu & Another (supra). 10. The appellant submits that the respondents did not meet the threshold of issuance of a temporary order of injunction as set out in Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358, as quoted Nguruman Ltd -vs- Jan Bonde Nielsen & Others [2014[ eKLR, and in Onyango & Another (Suing on behalf of the Residents of Central & South Sakwa Wards Villages -vs- Rateng Akinyi Mabinju (Suing as & Obede personal representative and or administratrix of the JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 5

page 5 of 15

estate of Nyakwaka Raphael & Others [2025] KEELC 18649 [KLR]. 11. The respondents rely on written submissions dated 27/4/2026, isolating six issues for the court’s determination. It is submitted that the appellant was unable to produce any land sale agreement to demonstrate that indeed he purchased the suit land or any other parcel comprised in the estate of the deceased or paid consideration for the same. 12. The respondents submit that they met the threshold to be granted a temporary injunction, unlike the appellant, whose land sale agreement dated 15/1/2015 was an afterthought, the surveyor’s report dated 13/4/2018 and 2/12/2020, ORIGINAL COPY the site 10/3/2014, visit report and dated 6/11/2020, all showed that the 1 st respondent had been in actual possession of the suit land since 26/2/2014, which was not set aside by the confirmation of grant on 10/12/2018, the same case with the 2nd respondent. 13. The respondents submit that the appellant, during the confirmation of the grant, was not listed as one of the purchasers of the estate, hence he was an intermeddler. The respondents also submit that the appellant is neither an administrator, beneficiary, nor dependant of the estate of the deceased, but JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 6

page 6 of 15

rather a third party who trespassed on the respondents’ property, and that such matters or disputes fall within the Environment and Land Court and not the succession court, as held in Re Estate of Daniel Khasievera Anusu (deceased) [2020] eKLR and Re Estate of John Kiptoo Keino (deceased) [2024] KEHC. 14. The respondents submit that what is pending at the High Court was the 2nd and 3rd defendants’ application dated 30/7/2025 for redistribution of the estate, yet a similar application was dismissed by a ruling dated 23/7/2019, which has attached a notice of appeal dated 31/7/2021. 15. On locus standi, the respondents submit that they ORIGINAL COPY filed the suit as beneficiaries of the estate, hence have a right to be heard as held in the Law Society of Kenya -vs- Commissioner of Lands & Others, Nakuru HC Civil Appeal No. 464 of 2020, Michael Osundwa Sakwa -vs- The Chief Justice and President of Supreme Court of Kenya & Another [2016] eKLR, and in Natembeya (As legal representative of the Estate of Peter Natembeya Wenani & Another -vs- Wenani & Others [2024] KEELC 4822 [KLR]. JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 7

page 7 of 15

16. Further, the respondents submit that the appeal is incompetent for lack of a certified copy of the appealed ruling or order. Reliance is placed on Order 4, Rule 2, 13(4) and 2(7) of the Civil Procedure Rules and Bwana Mohamed Bwana vs- Silvano Buko Bonaya & Others [2015] eKLR. 17. The court has carefully gone through the memorandum of appeal, record of appeal, and the written submissions. The role of this court is to reanalyse, reconsider, and review the record of the court below and come up with independent findings on both facts and the law. See Peter -vs- Sunday Post Ltd (1958) EA 424 and Selle & Another ORIGINAL COPY vs- Associated Motor Boat C. Ltd & Others [1968] EA 123. 18. The grounds of appeal dated 14/7/2025 are only two. The issue of whether or not the trial court ought to have issued a temporary order of injunction was not raised in the grounds of appeal. A party cannot, without leave of court, rely on new grounds or address the court on matters which were not raised on appeal. 19. The court is also alive to the application dated 16/5/2025, seeking to review, discharge, vacate, or set aside the temporary injunction which the JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 8

page 8 of 15

appellant later withdrew on 27/6/2025. There was also another application dated 27/7/2025 for joinder of the proposed 3rd, 4th, and 5th defendants at the lower court, said to be the legal administrators of the estate of the late William Cheruiyot Lelmet. The said 3rd - 5th defendants were alleged to have sold the appellant a portion of the estate in 2013 at a cost of Kshs. 2,300,000/=, and also for the stay of the proceedings to await the outcome of the succession cause. 20. The trial court allowed for the joinder but declined to stay the proceedings by a ruling dated 27/11/2025. The appellant, therefore, has not appealed against such a ruling or amended his ORIGINAL COPY grounds of appeal herein to now urge the court that the trial court should have stayed or referred the matter to the High Court, to avoid conflicting decisions or to have acted against the doctrine of non-exhaustion. 21. Having said that, to determine if the jurisdiction of a court is properly invoked, one looks at the pleadings before the court. In Paul Mungai Kimani & Others -vs- Kenya Airport Authority & Other, Supreme Court Petition No. 11 of 2019. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and help the JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 9

page 9 of 15

court know if it has jurisdiction or not. See Raila Odinga & Others -vs- Independent Electoral and Boundaries Commission & Others [2014] eKLR. See also Rutongot Farm Ltd -vs- Kenya Forest Service & Another [2018] eKLR. 22. A cause of action relates to acts on the part of the defendant that give rise to a cause of complaint by the plaintiff. See D.T. Dobie & Company (Kenya) Limited -vs- Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR) (18 March 1980) (Judgment). 23. The cause of action as pleaded by the respondents is captured in the plaint dated 11/4/2025 at paragraphs 3, 4, 5, and 6, based on trespass to ORIGINAL COPY private land. Other than the preliminary objection, the court has not come across any other pleadings by the appellant, refuting the claim that he trespassed onto the estate of the deceased, which has been given to the respondents, setting confirmation of grant on 10/12/2018. 24. Trespass refers to entry into private land without the jurisdiction, consent, or authority of the claimant, who has immediate exclusive possession of the same. See Kenya Power and Lighting Company -vs- Ringera [2022] KELCA 104 [KLR] (4th February 2020) (Judgment) and M'Ikiara JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 10

page 10 of 15

M'Mukanya & Another -vs- Gilbert Kabeere M'Mbijiwe [1984] eKLR. 25. The appellant faults the trial court for assuming a jurisdiction to hear and determine a matter which, according to him, was before the Family Division of the High Court. Copies of the proceedings at the High Court were not availed before the trial court to show that the instant suit was res judicata. 26. Jurisdiction is everything. It is either there or not there at the inception of the case. It is a creature of statute, the Constitution, or both. In S.K. Macharia & Another -vs- Kenya Commercial Bank (supra), the court held that a court cannot expand or arrogate to itself jurisdiction which has not been ORIGINAL COPY conferred by law. A court without jurisdiction has to down its tools as held in Owners of Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd [1989] KLR 1. 27. The jurisdiction of the Environment and Land Court is governed by Article 162 (2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The appellant does not plead that he is a beneficiary, dependent, or part of the estate of the deceased. The jurisdiction of the Environment and Land Court and the High Court was clarified in the Mombasa Court of Appeal Civil Appeal No. E055 of 2022, Bank of Africa JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 11

page 11 of 15

Kenya Ltd & another vs. TSS Investment Ltd & 2 others ([2024] KECA 410, Co-operative Bank of (K) Ltd -vs- Patrick Kangethe Njuguna & Others [2017] eKLR, and Joel Mbaluka t/a Mbaluka & Associates Advocates -vs- Daniel Ochieng Ogola t/a Ogola Okello & Co. Advocates [2015] eKLR. 28. A party cannot, though pleadings, confer jurisdiction to a court when none exists, as held in Orange Democratic Movement -vs- Yusuf Ali Mohamed & 5 others [2018] eKLR. In Republic -vs- Karisa Chengo & Others, Petition No. 5 of 2015, the court clarified the role of specified courts. Further, in Suzanne Achieng Butler & 4 others -vsORIGINAL COPY Redhill Heights Investments Limited & another [2016] eKLR, the court set out the parameters for determining where the dispute falls between the two courts. 29. Further, in the S.K. Macharia case (supra), the court emphasised that courts must operate within their constitutional limits. The claim before the court is by a third party to the estate of the deceased. 30. Section 45 of the Law of Succession Act governs dealing with the deceased's property without authority before the grant of representation is confirmed. Rules 4 and 42(b) of the Probate and JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 12

page 12 of 15

Administration Rules deal with such claims. Such disputes, as held in Re State of Francis Peter Njuguna Rurigi (deceased) [2016] eKLR, fall within the jurisdiction of the Environment and Land Court and not the Succession Court. 31. Coming to locus standi, the respondents are raising a claim of trespass. They do not seek to defend the estate of the deceased further. Rather, they say that the appellant was trespassing on land belonging to them as beneficiaries. In Eric Kibiru Kinuthia (Suing as the legal person representative of the estate of Loise Gachiku Kinuthia (deceased) -vs- Josephat Gacheru Rugiri & Others, Petition No. E047 of 2024, the ORIGINAL COPY Supreme Court said that locus standi is a prerequisite in instituting a suit before a court of law, and that, as held in Kinuthia (Through the Administrators of His Estate -vs- Anyanga & 6 Others [2025] KESC 60 KLR, only a party with locus standi can competently move the court. 32. The court, after analysing the Law of Succession Act, held that a confirmed grant is not a prerequisite for conferment of locus standi upon a personal representative, and only becomes a requirement where the personal representative JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 seeks to 13

page 13 of 15

transmit, sell part or all of the immovable property comprised in the estate. 33. In this appeal, the respondents have defined the basis of the claim that the appellant is an intruder to the estate, yet he is neither a beneficiary nor a dependant of the estate. Therefore, it cannot be true that the suit was improperly initiated by persons lacking capacity. 34. The court found that the trial court was in order to find the preliminary objection not a pure point of law as defined in Mukisa Biscuits Manufacturing Ltd -vs- West End Distributors Ltd [1969] EA 696. It is improper, as held in Oraro -vs- Mbaja [2005] eKLR, to raise a preliminary objection that ORIGINAL COPY requires sufficient evidence to be ventilated or is on contested facts or borders on the exercise of the court’s discretion. 35. The appeal lacks merits. It is dismissed with costs. 36. Orders accordingly. Judgment dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 24th day of June 2026. In the presence of: Court Assistant - Dennis Cheruto for the appellant No appearance for the respondents JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 14

page 14 of 15

HON. C.K. NZILI JUDGE, ELC KITALE. ORIGINAL COPY JUDGMENT: KITALE ELC APPEAL NO. E022 OF 2025 - D.O.D. – 24/06/2026 15

page 15 of 15