[2022] KEHC 15826 (KLR)
The High Court, sitting as a probate court, lacks jurisdiction to determine disputes concerning occupation and eviction from land forming part of a deceased's estate. Such disputes fall squarely within the jurisdiction of the Environment and Land Court as established by Article 162(2)(b) of the Constitution and the...
Source-derived case information.
- Citation
- [2022] KEHC 15826 (KLR)
- Parties
- Applicant: Philis Kajuju; Administrator: Peterson Kobia; Respondent: Jediel Muthuri; Respondent: Patrick Mutai M’Rwito; Respondent: Cecilia Gaiti M’Rwito; Respondent: David Mutwiri; Respondent: Kenneth Kirimi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 4 of 1994
- Procedural Posture
- Succession Cause / Ruling on Summons for Eviction and Jurisdiction
- Outcome
- summons dismissed for want of jurisdiction
- Judges
- TW Cherere
- Legal Topics
- Probate Jurisdiction, Eviction Orders, Land Occupation Disputes, Environment and Land Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philis Kajuju
Applicant
Peterson Kobia
Administrator
Jediel Muthuri
Respondent
Patrick Mutai M’Rwito
Respondent
Cecilia Gaiti M’Rwito
Respondent
David Mutwiri
Respondent
Kenneth Kirimi
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Eviction and Jurisdiction
Legal Issues
- 1 Does the probate court have jurisdiction to determine disputes relating to occupation and eviction from land forming part of the estate?
- 2 Should the summons seeking eviction of the respondents from LR Abogeta/U-Chure/424 be granted?
Ratio Decidendi
The High Court, sitting as a probate court, lacks jurisdiction to determine disputes concerning occupation and eviction from land forming part of a deceased's estate. Such disputes fall squarely within the jurisdiction of the Environment and Land Court as established by Article 162(2)(b) of the Constitution and the Environment and Land Court Act. The applicant's summons sought orders that the probate court is not empowered to grant, and therefore, the application must be dismissed for want of jurisdiction. The court emphasized that jurisdiction is everything, and without it, the court cannot proceed further in the matter.
Court Disposition
summons dismissed for want of jurisdiction
Orders
- Summons dated July 18, 2022 is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
34 paragraphs
In re Estate of M’rwito Manga Alias Chabari Manga (Deceased) (Succession Cause 4 of 1994) [2022] KEHC 15826 (KLR) (1 December 2022) (Ruling)
Neutral citation: [2022] KEHC 15826 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 4 of 1994
TW Cherere, J
December 1, 2022
IN THE MATTER OF THE ESTATE OF M’RWITO MANGA ALIAS CHABARI MANGA (DECEASED)
Between
Philis Kajuju
Petitioner
and
Peterson Kobia
Administrator
and
Jediel Muthuri
1st Respondent
Patrick Mutai M’Rwito
2nd Respondent
Cecilia Gaiti M’Rwito
3rd Respondent
David Mutwiri
4th Respondent
Kenneth Kirimi
5th Respondent
Ruling
1. By a judgment dated June 16, 2021, Lessit J (as she then was) ruled that the objector had failed to prove that his mother Charity Njiru was wife of deceased and that Jediel Muthuri (objector) and his siblings Patrick Mutai and Cecilia Gaiti were children of the deceased.
2. I have considered the summons dated July 18, 2022 in the light of the affidavits on record and submissions by the parties. Respondents have raised the issue of this court’s jurisdiction to determine this matter concerning eviction of respondents from LR Abogeta/U-Chure/424 on the basis that they are not deceased’s children.
3. The Environment and Land Court is a statutory creation by the Constitution of Kenya under the provision of article 162 (b). From the preamble of the ELC Act, the jurisdiction of the court is defined as “……a superior court to hear and determine disputes relating to the environment and the use and occupation of, and the titles to, land and to make provisions for its jurisdiction functions and powers and for connected purposes……”.
4. In my considered view, the issue before the court is one of occupation of the respondents on LR Abogeta/U-Chure/424 and that places the cause of action squarely in the jurisdiction of the Environment & Land Court Act (ELC Act) and consequently the Environment & Land Court (ELC court).
5. By placing a dispute relating to occupation of land before the probate court, applicant is asking the court to engage in matters that are beyond its jurisdiction.
6. From the foregoing, I have come to the conclusion that this court lacks the requisite jurisdiction to issue orders of eviction against the respondents. I echo Nyarangi JA in the case of The Owners of the Motor Vessel Lilian 'S' v Caltex Kenya Limited(1989) KLR 1 that“………. 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 downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.
7. In the end, I find that summons dated July 18, 2022 has no merit and it is dismissed with costs to the respondents.
DATED IN MERU THIS 01ST DAY OF DECEMBER 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - Mr. Murango for Murango Mwenda & Co AdvocatesFor Respondents - Mr. Gichunge for Gichunge Muthuri & Company Advocates