https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3783

Kapkiyai v Kiany (Enviromental and Land Originating Summons E007 of 2026) [2026] KEELC 3783 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3783 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Enviromental and Land Originating Summons E007 of 2026 GMA Ongondo, J June 16, 2026 Between Julia Chepiwot Kapkiyai Applicant and Kipketer arap Kiany Respondent Ruling 1.By a Preliminary Objection dated 6th March 2026, the respondent, Kipketer Arap Kiany through Cheruiyot Lagat and Partners Advocates is seeking to have the present suit struck out on the grounds infra;a.That this Honourable Court lacks the requisite material and subject-matter jurisdiction to hear, entertain, and determine the dispute herein.b.That the Applicant’s suit, as pleaded in the Amended Originating Summons, is principally a claim for the declaration of spousal rights, spousal consent and beneficial interest over matrimonial property. The Applicant expressly invokes Section 9, 11, 12 and 14 of the Matrimonial Property Act, 2013 (MPA herein).c.That Pursuant to Section 17 of the MPA, as read together with Rule 6 of the Matrimonial Property Rules 2022 (MP Rules herein), the original jurisdiction to hear and determine claims relating to matrimonial property is explicitly vested in the High Court and the Magistrate’s Courts with civil jurisdiction to adjudicate matters within the court’s pecuniary jurisdiction, thereby expressly excluding the Environment and Land Court.d.That the Jurisdiction of the Environment and Land Court is strictly limited to Article 162(2)(b) of the Constitution of Kenya, 2010 (The Constitution herein), and Section 13 of the Environment and Land Court (ELC) Act, 2011, which do not extend to the division of, or declaration of trusts over matrimonial property between spouses.e.That consequently, the entire suit filed before this Honourable Court is incompetent, fatally defective, and incurably bad in law, rendering all proceedings and orders issued herein, including the interim injunction issued on 25th February 2026, null and void ab initio for want of jurisdiction.f.That the suit is a gross abuse of the Court process and ought to be struck out with costs awarded to the Respondent. 2.In opposition to the preliminary objection, the applicant through Terer and Company Advocates relied on the grounds of opposition dated 15th April 2026 namely;a.That, the Applicant’s Originating Summons is that of a Declaration of trust as brought under Section 37 (1 & 2) of the Civil Procedure Rules and Section 28b and 93 of the Land Registration Act (LRA) and not a division of matrimonial property.b.That, the Respondent’s preliminary objection does not raise or bring out any pure point of law.d.That, the Honourable Court has jurisdiction to handle and determine the suit herein pursuant to Section 13 of the ELC Act and matter of declaration of trust.e.That the High Court lacks jurisdiction to handle and determine any matter touching on land issues pursuant to Article 162 of the Constitution.f.That, the suit herein is a claim for equitable interest in land, hence a dispute over land ownership.g.That, suit herein, seeks a determination and declaration of trust under Section 6(2) of the MPA.h.That, the substratum of the dispute herein is ownership over land to which this Honourable Court squarely has jurisdiction under Section 13(2) of the ELC Act.i.That, the Respondent’s preliminary objection is frivolous, vexation, scandalous and a waste of court’s time and should be dismissed with costs. 3.It is borne in mind that the applicant commenced the instant suit by an amended originating summons dated 23rd February 2026 claiming beneficial interest in Land Reference number Nandi/Koylat/155 (The parent property) currently registered in the name of KIPKETER ARAP KIANY for determination of the following questions;a.Whether the Respondent herein, by deed of being the Legally Registered owner of that parcel of land known as formerly known as Nandi/Koylat/155, now Nandi/Koylat/559 and Nandi/Koylat/560, being subdivisions (The first and second suit properties respectively) from the parent property, is holding it in trust for and on behalf of the Applicant and her children.b.Whether the suit properties are subject to trust.c.Whether the Applicant herein, being a spouse to the Respondent herein and an occupant of the suit properties, has an overriding interest over the suit properties.d.Whether the Respondent herein being a spouse to the Respondent herein and an occupant of the suit properties, has an overriding interest over the suit properties exclusively, with no regard to his wife and family.e.Whether the costs of this suit should be borne by the respondent. 4.The respondent opposed the originating summons by way of his 25-paragraphed replying affidavit sworn on 4th March 2026 with copies of photographs and certified copy of register/green card marked as ‘KAK 1 KAK 2 respectively annexed thereto. He averred, inter alia, that claims for declaration of rights in matrimonial property fall under section 17 of the MPA as read with Rule 6 of the MP Rules 2022 and ought to be instituted at the High Court and not before this Honourable court. That nonetheless, he denied the applicant’s claim and stated that he bought the parent land with his own resources before he married the applicant. That the suit is bad in law, incompetent, misconceived and an abuse of the court process hence, the same be struck out and or dismissed with costs. 5.Hearing of the preliminary objection was by written submissions further to directions of this court given on 18th March 2026 being guided by the case of Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 others (2013) JELR 97000 (CA), where the Court of Appeal held;‘ A question of jurisdiction once raised by a party or by the court on its motion must be decided forthwith…….’ 6.By the respondent’s submissions dated 31st March 2026 in support of the preliminary objection, it was stated that the said objection is founded on the applicant’s own pleadings relating to spousal rights, consent and beneficial interest thus, invokes sections 9, 11, 12 and 14 of the MPA. That primary concern is the matrimonial rights in the matter while the other prayers including trust, spousal consent, nullity of sale and injunction are ancillary. 7.Furthermore, learned counsel for the respondent identified twinned issues for determination namely whether the preliminary objection contains pure point of law and whether this court has jurisdiction over this suit. In the analysis of issues, counsel submitted in the negative, urged the court to uphold the preliminary objection and strike out the suit with costs. To fortify the submissions, reliance was made on, inter alia, Article 162 (2) (b) (supra) Mukisa Biscuit Manufacturing Co. Ltd - vs- West End Distributors (1969) EA 696, Owners of the Motor Vessel “Lilian S” –vs- Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) and Macharia & another -vs- Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR). 8.In the submissions dated 4th June 2026, learned counsel for the applicant made reference to the originating summons inclusive of the orders set out on its face, the preliminary objection, the grounds of opposition and this Honourable Court’s directions regarding the hearing of the preliminary objection. Counsel identified an issue for determination namely whether this Honourable court has jurisdiction over this matter. Counsel discussed the issue that the matter falls within the jurisdiction of this court in consonant with Article 162 (2) (b) (supra). 9.Additionally, counsel cited the cases of RW vs JMN (2022) eKLR and BWM vs JMC (2018) eKLR on title to land in dispute since the plaintiff claimed ownership of it, to reinforce the submissions. Counsel submitted that this Honourable court is vested with jurisdiction to determine this matter and urged the court not to entertain the preliminary objection which is geared at delaying justice process, causing unnecessary cost and occasioning confusion of issues in dispute. That therefore, the preliminary objection be dismissed or struck out with costs. 10.Having considered the preliminary objection, the grounds of opposition, the parties’ respective pleadings and the rival submissions including case law cited therein, is the preliminary objection sustainable? 11.In Mukisa Biscuit Manufacturing Co. Ltd case (supra), the Court of Appeal remarked;“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.” 12.Further, the said Court proceeded to give examples of points of law to include jurisdiction of court which is contained in the preliminary objection herein. Halsbury’s Laws of England 4th Edition Volume 9 at page 350, describes ‘Jurisdiction’ thus;‘…..the authority of the Court which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for decision…….’ (see also Benson Ambuti Adega & 2 others vs Kibos Distillers Ltd & 5 others (2020) eKLR that ‘Jurisdiction’ denotes the adjudicatory body’s power to entertain the proceedings) 13.This court subscribes to the decision in Owners of the Motor Vessel ‘Lilian S’ case (supra) where the Court of Appeal held;‘Jurisdiction is everything. Without it, a court has no power to make 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.’ 14.It is important to note that in the case of Samuel K Macharia & another-vs- Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court of Kenya observed;‘A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.’ 15.The Originating Summons dated 23rd February 2026 amended 27th February 2026 under questions 1, 2 and 3 on the face of it as well as the grounds and the affidavit in support of the said summons, relate to trust and overriding interests. Wife and family are pleaded under question 4 on the same face. Thus, it would be improper to split this suit in order to prevent conflicting decisions relating to dual matters namely land including trust as an overriding interest and family because of the two distinct jurisdictions. Nonetheless, the predominant issues overriding interests inclusive of trust as disclosed in the pleadings herein. 16.Section 28 of the Land Registration Act 2016 (2012)(RLA herein) provides for trusts including customary trusts as overriding interests on registered land. So, trust is a question of fact to be proved by evidence as held in Mumo vs Makau (2002 ) 1 EA 170 and Isack Kiebia M’Inanga vs Isaaya Theuri M’Lintari & another (2018) eKLR. 17.In ZMZ vs EMH {2023} KEHC 21397 (KLR) the court held that the mandate of this court (ELC0 is restricted to Article 162 (2) (supra) and family/matrimonial property claims falls within the domain of the High Court. In Macharia & another vs Oscar{2024] KEELC 245 (KLR), the court noted a trustee obligation as the defendant who was registered as the proprietor of the land, held it in trust for himself and his other family members thus, the court enforced a family land trust under section 28 of the LRA. 18.The core of this suit revolves around registered land ownership and trust declarations. In the circumstances, this court has to first decide whether a trust exists under section 28 LRA before enforcement of wife’s right as Isack M’Inanga Kiebia case (supra) firmly established that customary rights are overriding interests. 19.The ELC has specialized jurisdiction to entertain intertwined land and trusts matters including customary trusts as overriding interests binding on registered land. The court has full Jurisdiction to hear and determine land rights and can void title or unlawful transactions pursuant to Article 162 (2) (b) (supra) and section 3 of the ELC Act 2015 (2011). 20.It is settled law that family and customary trusts over registered land like in the present matter, are overriding interests that bind it, see Kiebia case (supra). Therefore, this court has jurisdiction over the instant suit. 21.In the result, the preliminary objection dated 6th March 2026 is unsustainable. The same is hereby dismissed with costs in the cause. 22.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 16TH DAY OF JUNE 2026.HON. G M A ONGONDOJUDGEIn the presence of;Mr. Kipkoech learned counsel for the applicant.Mr. Cheruiyot learned counsel for the respondent.Mr. Walter Kipkorir, Court Assistant.