https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3838

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC APPEAL CASE NO. E022 OF 2025** **JOSEPHAT LAGAT------------------------------------------------APPELLANT** **VERSUS** **ROSSY LELMET--------------------------------------------1ST RESPONDENT** **WINNIE LELMET----------------------------------------2ND RESPONDENT** ***[Being an Appeal from the Ruling and Order of the Chief Magistrates Court in Kitale in MCELC No. E082 of 2025, delivered on 27th June, 2025, by Hon. C.N. Njalale (PM)]*** **JUDGMENT** 1. The appellant, who was the defendant at the lower court, had been sued by the respondents through a plaint dated **11/4/2025** seeking: 2. **Declaration that he was a trespasser to undefined land measuring 2 acres, acquired by the respondents as beneficiaries in Kitale High Court Succession Cause No. 137 of 2010, in the estate of Cheruiyot Lelmet, who is their deceased father.** 3. **Permanent injunction restraining him from trespassing on to or any interference with the suit land.** 4. 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. 5. The appellant opposed the application through a preliminary objection, which was also responded to 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: 6. **The respondents lack *locus standi* to sue since they are not the administrators of the estate.** 7. **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.** 8. **The subject matter, being the distribution, ownership, and occupation 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.** 9. **The claim is a disguised appeal or review of the orders issued by the High Court contrary to the law.** 10. **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.** 11. The appellant, by a memorandum of appeal dated **14/7/2025**, faults the trial court for: 12. **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.** 1. This appeal was canvassed through written submissions. The appellant relies on written submissions dated **31/3/2026**, 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 and 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***. 2. 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***. 3. The appellant submits that courts, as held in ***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 non-exhaustion 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***. 4. 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. 5. 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 -vs- Commissioner of Lands & Others [2010] eKLR***, and in ***Trouistik Union International & Another -vs- Jane Mbeyu & Another*** *(supra).* 6. 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 Rateng Mabinju & Obede Villages -vs- Akinyi (Suing as personal representative and or administratrix of the estate of Nyakwaka Raphael & Others [2025] KEELC 18649 [KLR].*** 7. 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. 8. 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 **2/12/2020, 10/3/2014**, and **13/4/2018** and the site visit report dated **6/11/2020,** all showed that the 1st 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. 9. 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 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***. 10. 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**. 11. On *locus standi*, the respondents submit that they 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]***. 12. 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***. 13. The court has carefully gone through the memorandum of appeal, record of appeal, and the written submissions. The role of this court is to re-analyse, 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 -vs- Associated Motor Boat C. Ltd & Others [1968] EA 123.*** 14. 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. 15. 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 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. 16. 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 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. 17. 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 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.*** 18. 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).*** 19. 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 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**. 20. 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 M'Mukanya & Another -vs- Gilbert Kabeere M'Mbijiwe [1984] eKLR.*** 21. 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*. 22. 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 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***. 23. 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 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***. 24. 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 -vs- Redhill Heights Investments Limited & another [2016] eKLR***, the court set out the parameters for determining where the dispute falls between the two courts. 25. 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. 26. **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 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. 27. 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 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. 28. 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 seeks to transmit, sell part or all of the immovable property comprised in the estate. 29. 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. 30. 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 requires sufficient evidence to be ventilated or is on contested facts or borders on the exercise of the court’s discretion. 31. The appeal lacks merits. It is dismissed with costs. 32. 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  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**