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ELCDismissedNot stated in the judgment

Susan Tapen Kenya v Clement Achachi [2021] KEELC 3617 (KLR)

Environment and Land Court
21 April 2021
MNMwangi Njoroge
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can decide divorce-related land ownership disputes, dismissing an attempt to block a widow's claim over matrimonial property.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, Judge) delivered on 21 April 2021 on a notice of motion dated 22 February 2021 together with a preliminary objection, both filed by the defendant. The defendant sought discharge and vacation of an interlocutory injunction issued on 14 December 2018 and confirmed on 28 March 2019, a declaration that the court lacks jurisdiction because the suit property is matrimonial property governed by the Matrimonial Property Act, striking out of the suit, and costs. The application was brought under Section 13 of the Environment and Land Court Act, Article 162 of the Constitution, Sections 6 and 17 of the Matrimonial Property Act and Order 40 Rule 6 of the Civil Procedure Rules. The sole issue framed for determination was whether the court has jurisdiction over the suit. The defendant contended that the plaintiff's claim, including a prayer for a declaration that the suit land is matrimonial property, is governed by the Matrimonial Property Act. The plaintiff relied on Section 28(b) of the Land Registration Act on trusts and on Mugo Muiru Investments Ltd v E.W.B and BWM v JMC. Applying BWM v JMC, the court held that the substratum of the dispute is ownership of land; the prayers for declaration and transfer raise issues of use, occupation and title to land within Article 162(2)(b) and Section 13 of the ELC Act, whose jurisdiction is very broad. The court found no ground to divest itself of jurisdiction, dismissed both the application and the preliminary objection with costs to the plaintiff, and directed a mention on 29 April 2021 for issuance of a hearing date.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Environment and Land Court has jurisdiction to hear and determine the instant suit where the plaintiff's claim includes a declaration that the suit property is matrimonial property

Key legal issues

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01

Whether the Environment and Land Court lacks jurisdiction over a suit seeking a declaration that suit land is matrimonial property

Holding

The court has jurisdiction; the claim relates to title, use and occupation of land under Article 162(2)(b) and Section 13 of the ELC Act.

Reasoning

The ELC's jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act is very broad, covering disputes relating to environment, title, and use and occupation of land. The plaintiff's prayers for a declaration that the suit land is matrimonial property and for transfer of the land raise issues of use, occupation and title to land. Relying on BWM v JMC, the substratum of the dispute is ownership of land, and the Matrimonial Property Act does not specify the court for such disputes.

p. 3

Legal principles established

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  • The jurisdiction of the Environment and Land Court is broad: as long as a claim relates to environment, title, or use and occupation of land, the court has jurisdiction, even where the claim also invokes matrimonial property concepts.
  • A prayer for a declaration that suit land is matrimonial property raises issues of use and occupation of land within the ELC's jurisdiction.
  • Where the substratum of a dispute is ownership of land, the ELC has jurisdiction notwithstanding a matrimonial property label, since the Matrimonial Property Act does not designate a specific court for such disputes.

Court orders

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  1. 1.The application dated 22/2/2021 is dismissed
  2. 2.The preliminary objection dated 23/2/2021 is dismissed
  3. 3.Costs of the application awarded to the plaintiff
  4. 4.The suit to be mentioned on 29th April 2021 for issuance of a hearing date

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MN
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (Act No. 19 of 2011); application brought under Section 13 of the ELC Act, Article 162 of the Constitution, Sections 6 & 17 of the Matrimonial Property Act and Order 40 Rule 6 of the Civil Procedure Rules

Relief refused

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Discharge of the interlocutory injunction issued on 14/12/2018 and confirmed on 28/3/2019, and vacation of the orders granting it

The court found it has jurisdiction over the suit; the application was dismissed

p. 3

A declaration that the court lacks jurisdiction to entertain the suit on the ground that it is governed by the Matrimonial Property Act

The claim relates to title, use and occupation of land, within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act

p. 3

Striking out of the suit and condemnation of the plaintiff to costs of the application and the suit

The suit should proceed to hearing on its merits

p. 3

Costs

The application and preliminary objection were dismissed with costs to the plaintiff.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that there would be no ground upon which to hold that this court has no jurisdiction to hear and determine the present suit.
p. 3Jurisdiction of the ELC over matrimonial property claims concerning land
as long as a claim relates to environment, title and use and occupation of land, the court verily has jurisdiction over such a matter
p. 3Breadth of ELC jurisdiction under Section 13 of the ELC Act
the substratum of the dispute at hand is the ownership of the suit land.
p. 3Substratum of dispute test from BWM v JMC
Consequently the application dated 22/2/2021 and the preliminary objection dated 23/2/2021 are both hereby dismissed with costs to the plaintiff.
p. 3Final orders / disposition

Issues in the judgment

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material

The judgment is incomplete/omits the case title, case number and full party names, making identification of the suit impossible from the text alone.

minor

The applicant's submissions date (23/3/2021) appears inconsistent with the respondent's replying affidavit and submissions both dated 19/3/2021, with submissions said to have been filed before the replying affidavit despite the court ordering written submissions.

minor

The judgment contains typographical errors, including 'bought' for 'brought', 'Act no' left incomplete, and duplicated lettering ('(g)' appearing twice) in the quotation of Section 13(7) of the ELC Act.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Susan Tapen Kenya v Clement Achachi [2021] KEELC 3617 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3617/eng@2021-04-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.