https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7026

Ndugire & another v Ndugire & 3 others (Civil Appeal E1254 of 2024) [2026] KEHC 7026 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEHC 7026 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E1254 of 2024 FR Olel, J May 18, 2026 Between John Muya Ndugire 1st Appellant Antony Njenga 2nd Appellant and Shadrack Muya Ndugire 1st Respondent Bahati Wamaitha Mohammed 2nd Respondent Richard Sure Maganga 3rd Respondent Kennedy Mong’are Nyachiro 4th Respondent (BEING AN APPEAL FROM THE RULING DELEIVERED BY HON WENDY MICHENI (CM) DELIVERED ON 30th JUNE 2023 IN NAIROBI CMCC NO 5008 OF 2018) Judgment A. Introduction 1.Through their plaint dated 19th November 2015, the appellants sued the respondents herein, wherein they stated that they were the legal administrators of the estate of the late Jane Wambui Ndugire (Deceased), who was the equitable owner of all that parcel of land known as Plot No. E155 and Plot E156 (Embakasi Ranching company limited)( hereinafter referred to as the suit parcels of land). 2.Sometime in April 2012, the 2nd respondent purportedly entered into a sale agreement dated 13th April 2012, with the 3rd and 4th respondent on the strength of an alleged power of attorney dated 12th April 2012, that he had forged to enable him sell the suit properties. When their mother died, this fraudulent transaction came to light as the 3rd and 4th respondent rushed to court and filed ELC Suit No 836 of 2013 against the 1st and 2nd respondent and obtained interim prohibitory orders against them from burying the remains of the late Jane Wambui Ndugire (deceased) on the suit parcels of land. 3.The appellants reiterated that the 2nd respondent had no capacity to sell the suit parcels of land and prayed that the respondents be permanently restrained from interfering with, trespassing or in any manner interfering with the their right to occupy and/or posses the suit parcels of land. They further sought for a declaration that the agreement dated 13th April 2012 be declared null and void. 4.As the primary suit was pending the 1st and 2nd respondent applied to revoke the grant, which the appellants had obtained in Nairobi High court Succession cause No 3257 of 2014, and when the parties appeared before lady Justice Farah Amin, the honourable judge Suo moto discharged the letters of administration and suo moto appointed the Public trustee as the sole administrator of the estate. Aggrieved by the said decision, the appellants did apply for review of the said order and by consent the parties compromised to remove the public trustee as the estate administrator and the court directed that the application for revocation of grant dated 12th February 2016 be heard afresh on its merit. 5.While the said application for revocation of grant was still pending, the 3rd and 4th respondent’s advocate raised a preliminary objection dated 1st April 2022, on grounds that;a.The plaintiff’s herein lack locus standi and/or capacity to institute the instant suit for reason that the grant on whose power they filed the suit has been revoked and remains a such and;b.The orders revoking the letters of administration granted to the plaintiffs in P & A 3162/2014 and 3257/2014 have never been set aside and therefore they are not proper parties capable of instituting this suit. 6.The parties herein did file their submissions for consideration by the trial magistrate and vide a ruling dated 30th June 2023, upheld the said objection and struck out the suit with costs. 7.The Appellants, being dissatisfied with the said Judgment, raised six (6) grounds of appeal, namely: -a.That the trial court erred in law and in fact by upholding the Preliminary objection dated 1st April 2022 which shows the court did not understand the issues before it for determination.b.That the trial court erred in law and fact by failing to consider the Appellants submissions before delivering the Ruling and/or study the pleadings on record so as to reveal the status of the matter.c.That the trial court erred in law and fact by finding that the plaintiffs were not administrators to the Estate and upholding the preliminary objection without the defendants having adduced any evidence to prove their allegations yet having been shown that the application for revocation of grant was already active in court.d.That the learned Magistrate erred in law and fact in holding that both parties confirmed that the grant stands revoked when the Applicants, through their submissions, clearly stated that the grant was not yet revoked and the application for revocation was yet to be heard to finality and still is so today.e.That the learned Magistrate erred in law and fact when she misdirected herself in law and fact in failing to find that the grant was automatically reinstated when the parties consented to have the Public trustee removed which had the effect of reviewing the revocation orders and restoring the position as was before the appointment and the court granting a date for revocation proceedings.f.That the learned Magistrate erred in law and fact in holding that the plaintiff did not have locus standi to institute the suit against the defendants on behalf of the Estate when they did and still hold the same. 8.The Appellant thus prayed that the appeal be allowed and the Ruling of the trial court be set aside and their suit CMCC No 5008 of 2018 be reinstated for full hearing and the preliminary objection be deemed as dismissed. B. Analysis And Determination 9.I have considered the entire record of Appeal and pleadings filed, the grounds of appeal raised, the submissions filed by the Appellant, and the cited authorities. An issue which sticks out as a sore thumb is the fact that this appeal arises from an ELC suit filed challenging the sale of the suit properties and that being the case, the question that arises is whether this court has jurisdiction to hear and determine the same. 10.The issue of jurisdiction was reiterated what the Court of Appeal stated in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (unreported) in a decision rendered on 8th February 2022 where they stated that : -Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given. 11.The Environment and Land Court (ELC) in Kenya has exclusive, original, and appellate jurisdiction to hear matters regarding land and environment, as established under Article 162(2)(b) of the Constitution and the Environment and Land Court Act No.19 of 2011. 12.Article 162(2)(b) of the Constitution provides as follows:Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—a.….; andb.the environment and the use and occupation of, and title to, land. 13.Relying on the authority granted by Article 162 of the Constitution, Parliament proceeded to enact the Environment and Land Court Act No.19 of 2011 that established the Environment and Land Court to exercise jurisdiction as provided for in Section 13 of the Act as follows:In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―i.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;ii.relating to compulsory acquisition of land;iii.relating to land administration and management;iv.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; andv.Any other dispute relating to environment and land. 14.The Supreme Court in Republic Vs Karisa Chengo & 2 Others (2017) Eklr guided as follows:“ (50)… it needs to be emphasized that status is not the same thing as jurisdiction. the Constitution though does not define the word ‘status’. The intentions of the framers of the Constitution in that regard are obvious given the choice of… words they used; that the three Courts (High Court, ELRC and ELC) are of the same juridical hierarchy and therefore are of equal footing and standing. To us it simply means that the ELRC and ELC exercise the same powers as the High Court in performance of its judicial function, in its specialized jurisdiction but they are not the High Court.” (51)Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the Court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions…” 15.The Superior Court went on to further state that:“…(52)… The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.” 16.Additionally, in Mohammed Said v County Council of Nandi [2013] KEELC 139 (KLR) the Court observed that:“The general jurisdiction is set out in Section 13 (1) which emphasizes that the E&LC has both original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of the Environment & Land Court Act, or any other law applicable in Kenya relating to environment and land…. A plain reading of Section 13 (3) will demonstrate that the jurisdiction of the court is not limited only to hearing matters touching on violations of Articles 42, 69, and 70 of the Constitution. That section does not state that the E&LC is only to hear the matters set out in Articles 42, 69 and 70 of the Constitution. The section for whatever reason, is emphasizes the jurisdiction of the court to hear petitions touching on the environment. There is no preclusion to hear any other petition, grounded on any other Article of the Constitution, so long as it falls within the purview of land and environment. 18.Indeed, the High Court has no jurisdiction in respect of matters that fall within the jurisdiction of the Environment and Land Court or that falling within the jurisdiction and the Industrial Court. This is set out in Article 165 (5) of the Constitution.” C. Disposition 17.Unfortunately for the Appellants, they have a valid appeal, which raised pertinent issue of law, but it is filed in the wrong court 18.This Appeal is therefore struck out and each party will bear their own costs of this Appeal 19.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MARSABIT THIS 18TH DAY OF MAY 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Team this 18th day of MAY 2026.In the presence of: -N/A …………………………………………………..AppellantN/A …………………………………………………. RespondentJarso ……………………………………………….Court Assistant