[2022] KEELC 14883 (KLR)
The court held that the plaintiffs' claim to the suit land is derivative of their late mother's interest, which must first be established in the Family Division of the High Court through succession proceedings. The plaintiffs must obtain letters of administration to be substituted in the pending succession matters....
Source-derived case information.
- Citation
- [2022] KEELC 14883 (KLR)
- Parties
- Plaintiff: Alexander Anthony Wahiu; Plaintiff: Samuel Mwai; Plaintiff: Nicholas Muiruri; Defendant: Joseph Kariha Wahiu; Defendant: Thumbi Kamau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 239 of 2018
- Procedural Posture
- Environment and Land Case / Ruling on Stay Pending Determination of Related Family Division Matters
- Outcome
- Suit stayed for six months to allow plaintiffs to obtain letters of administration and pursue succession proceedings.
- Judges
- AK Bor
- Legal Topics
- Succession Rights, Letters of Administration, Beneficial Interest in Land, Jurisdiction of Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander Anthony Wahiu
Plaintiff
Samuel Mwai
Plaintiff
Nicholas Muiruri
Plaintiff
Joseph Kariha Wahiu
Defendant
Thumbi Kamau
Defendant
Procedural Posture
Environment and Land Case / Ruling on Stay Pending Determination of Related Family Division Matters
Legal Issues
- 1 Whether the suit should be stayed pending determination of related succession proceedings in the Family Division.
- 2 Whether the plaintiffs, as dependants of their late mother, have locus standi to pursue her interest in the suit land.
- 3 Which court has jurisdiction to determine the plaintiffs' claim to the suit land.
Ratio Decidendi
The court held that the plaintiffs' claim to the suit land is derivative of their late mother's interest, which must first be established in the Family Division of the High Court through succession proceedings. The plaintiffs must obtain letters of administration to be substituted in the pending succession matters. Only after the Family Division determines the late mother's share in the suit land can the Environment and Land Court proceed to adjudicate the plaintiffs' claim. The court stayed the proceedings for six months to allow the plaintiffs to regularize their status and pursue the succession process, emphasizing the constitutional imperative to administer justice without undue...
Court Disposition
Suit stayed for six months to allow plaintiffs to obtain letters of administration and pursue succession proceedings.
Orders
- The suit is stayed for six months for the plaintiffs to take out letters of administration in the Family Division and pursue their late mother's share in the suit land.
- After six months, the case will be disposed of by a Judge sitting in the Environment and Land Court at Nairobi.
Full Case Text
Judgment text and source record
24 paragraphs
Wahiu & 2 others v Wahiu & another (Environment & Land Case 239 of 2018) [2022] KEELC 14883 (KLR) (23 September 2022) (Ruling)
Neutral citation: [2022] KEELC 14883 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 239 of 2018
AK Bor, J
September 23, 2022
Between
Alexander Anthony Wahiu
1st Plaintiff
Samuel Mwai
2nd Plaintiff
Nicholas Muiruri
3rd Plaintiff
and
Joseph Kariha Wahiu
1st Defendant
Thumbi Kamau
2nd Defendant
Ruling
1. This court heard this suit and vide its ruling dated 9/8/2021, it stayed the suit pending the determination of Nairobi HCCC No. 43 of 2010 (O.S) and Nairobi High Court Miscellaneous Civil Application Number 10 of 2006 in which the Family Division of the High Court at Milimani was to make a finding on the share the plaintiffs’ late mother was entitled to in the suit land. In that ruling, the court observed that the claim by the plaintiffs’ late mother to the suit land survived her death and her children would be the dependants of her estate. the court indicated that the plaintiffs ought to take out letters of administration and substitute their late mother in the two suits. The plaintiffs contend in this suit that it is their late mother who developed the suit land. A determination as to whether or not the plaintiffs’ late mother developed the suit land can only be made by the Family Division.
2. Being alive to the constitutional imperative to administer justice without undue regard to procedural technicalities which under article 159 is one of the principles to guide the court when it exercises judicial authority, this suit will be stayed for six months for the plaintiffs to take out letters of administration in the Family Division and thereafter pursue the assets of their late mother including her share, if any, in the suit land.
3. Thereafter, this case will be disposed of by a Judge sitting in the Environment and Land Court at Nairobi where the suit land is situated. That is the court which has jurisdiction over the matter following my transfer to the Environment and Land Court at Nanyuki.
DELIVERED VIRTUALLY AT NANYUKI THIS 23RD DAY OF SEPTEMBER 2022. K. BORJUDGEIn the presence of: -Mr. Stanley Kingara for the PlaintiffsMr. D. Mikwa holding brief for Mr. M. Gitonga for the 2nd DefendantMs. Stella Gakii- Court AssistantNo appearance for the 2nd Defendant