https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5331

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELC CASE NO. E020 OF 2025** **CHARLES MUNENE MURAGE.....................................................PLAINTIFF** **-VERSUS-** **ELIZABETH WANJIKU MURAGE.....................................1ST DEFENDANT** **JOSEPH NGOTHO MURAGE............................................2ND DEFENDANT** **JUDGMENT** 1. The Plaintiff herein filed this suit vide Plaint dated 23rd June 2025, in which he averred that the suit property, known as LR. Thegenge/Ihithe/244, where he resides, forms part of the estate of Elizaphan Murage (Deceased), of which the 1st Defendant was an administrator. 2. The grant for the estate of the said Elizaphan Murage (Deceased) was issued on the 29th of May 1998 and later confirmed on the 8th of April 2011. Pursuant to the confirmation of the grant, LR. Nyeri/Waraza/152 was subdivided, and titles were issued to the beneficiaries, including the children of the 2nd Defendant, for fear that he might sell it and leave them destitute. 3. However, the Plaintiff claims that the 1st Defendant transferred the suit property herein, LR. Thegenge/Ihithe/244, to the 2nd Defendant, even though the 1st Defendant was only entitled to a life interest and therefore the transfer to the 2nd Defendant alone was unlawful. 4. That it was a long-standing family position that the suit property, LR. Thegenge/Ihithe/244, would be shared only by the plaintiff herein, the 2nd Defendant and Elijah Gitonga Murage. 5. Thus, the Plaintiff's case is that the Defendants' actions are unlawful and fraudulent, as he has lived in the suit property for forty-nine (49) years and has developed it by planting tea and avocado plants, installing electricity and water, and his sons have built permanent homes. 6. The Plaintiff seeks the following orders: 7. **A declaration that he is entitled to a ⅓ share of the suit property Thegenge/Ihithe/244.** 8. **An order cancelling the title in the name of the 2nd Defendant and subdividing the suit property into three equal shares between the plaintiff, the 2nd Defendant and Elijah Gitonga Murage.** 9. **An order directing the 1st Defendant to sign all processes for the transfer and issuance of the title deeds in respect of the resultant titles.** 10. **The costs of this suit shall be borne by the defendants jointly and severally.** 11. Summons to enter appearance were served upon the Defendants, as per the affidavit of service dated 22nd July 2025, sworn by Ruth Nyambura Muthami. Still, the Defendants failed to enter appearance in the matter. 12. The suit was heard on 16 April 2026, when the Plaintiff’s case was heard in the absence of the Defendants. The Plaintiff adopted his witness statement and list of documents dated 23 June 2025 as his evidence-in-chief. 13. In his statement, he reiterated the contents of the Plaint summarised above, stating that he claims that the 1st Defendant's transfer of the suit property to the 2nd Defendant is illegal, and that the resultant title in the name of the 2nd Defendant is therefore illegal and fraudulent and should be cancelled. 14. Counsel for the Plaintiff also filed written submissions and cited section 13 of the Environment and Land Court Act regarding the Environment and Land Court's jurisdiction. 15. Counsel also quoted section 28 of the Land Registration Act regarding overriding interests on a title. 16. It is submitted that the Plaintiff, as a son of Elizaphan Murage (Deceased), was entitled to inherit the parcel of land he occupies, on which he has built and developed over the last fifty years, and that the suit be granted as prayed. **Analysis and Determination** 1. The Plaintiff claims entitlement to the suit property, LR. Thegenge/Ihithe/244, where he resides, which forms part of the estate of Elizaphan Murage (Deceased). However, the 1st Defendant, his mother, transferred it to the 2nd Defendant, his brother. The Plaintiff claims that this transfer was fraudulent. 2. From the Plaintiff’s bundle of documents, he filed a copy of the Confirmation of Grant dated 8 April 2011. The Confirmation indicates that both parcels of land that constitute the estate of the deceased, LR. Thegenge/Ihithe/244 and LR. Nyeri/Waraza/152, were confirmed in the name of the 1st Defendant, Elizabeth Wanjiku Murage, the Plaintiff’s mother. 3. Therefore, following this confirmation of the grant, the 1st Defendant was registered as the proprietor of the suit property, LR. Thegenge/Ihithe/244, to which the Plaintiff lays claim. 4. The Plaintiff contends that the 1st Defendant was to hold the property with a life interest. Still, according to the copy of title to the suit property that the Plaintiff produced, the 1st Defendant was registered as the absolute proprietor of the suit land, with no encumbrances. This explains how the 1st Defendant transferred the suit property to the 2nd Defendant. 5. It is evident from the facts of this case that this Court lacks the jurisdiction to handle this matter. This is an issue of succession, in which the beneficiaries should have been confirmed as owners of their respective portions of the inheritance, but instead chose to have their mother confirmed as the absolute proprietor of the suit properties comprising the estate. This Court lacks the jurisdiction to handle matters relating to the distribution of a deceased person's estate. Section 47 of the Law of Succession Act CAP 160 provides that: ***“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:*** ***Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”*** 1. In the case of **Republic v. Karisa Chengo & 2 Others [2017] eKLR**, the Supreme Court articulated the following stance: ***“It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are different Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes.”*** 1. On the facts of the case, it was the beneficiaries who erred by consenting to have the deceased’s estate confirmed absolutely in the 1st defendant’s name, instead of specifying all the beneficiaries and their respective shares. Section 71 of the Law of Succession Act CAP 160 provides as follows: ***“71. Confirmation of grants*** ***(1) After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.*** ***(2) Subject to subsection (2A), the court to which application is made, or to which any dispute in respect thereof is referred, may—*** ***(a) if it is satisfied that the grant was rightly made to the applicant, and that he is administering, and will administer, the estate according to law, confirm the grant; or*** ***(b) if it is not so satisfied, issue to some other person or persons, in accordance with the provisions of sections 56 to 66 of this Act, a confirmed grant of letters of administration in respect of the estate, or so much thereof as may be administered; or*** ***(c) order the applicant to deliver or transfer to the holder of a confirmed grant from any other court all assets of the estate then in his hands or under his control; or*** ***(d) postpone confirmation of the grant for such period or periods, pending issue of further citations or otherwise, as may seem necessary in all the circumstances of the case:*** ***Provided that, in cases of intestacy, the grant of letters of administration shall not be confirmed until the court is satisfied as to the respective identities and shares of all persons beneficially entitled; and when*** ***confirmed such grant shall specify all such persons and their respective shares.”*** 1. Therefore, the Plaintiff’s recourse is solely to seek the revocation of the confirmed grant issued to the 1st Defendant, thereby enabling the redistribution of the deceased’s estate to the beneficiaries in their respective shares. Consequently, each beneficiary may have their title registered in their individual name, an order this Court lacks the jurisdiction to issue. In accordance with the esteemed case of **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR:** ***“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis* *for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”*** 1. Consequently, the current suit is hereby struck out for want of jurisdiction. 2. No order as to costs **Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Ms Maina for the Plaintiff** **Denis - Court Assistant** **In the Absence of:** **The Defendants**