Serenade Properties Limited v Nthiwa & 3 others (Sued as Administrators of the Estate of the late John Nthiwa Nzioka (deceassed)) (Environment & Land Case 5 of 2020) [2022] KEELC 3910 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear land disputes involving a deceased person's estate and stopped the sale of land a buyer paid Kshs 50 million for.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection raised is a valid preliminary objection
- 2.Whether the preliminary objection is merited
- 3.Whether the plaintiff/applicant has met the threshold for grant of temporary injunction
Key legal issues
#Whether the preliminary objection dated February 25, 2020 was a valid preliminary objection
It was not valid; the grounds required interrogation of facts and evidence from the succession cause and were not pure points of law
Applying Mukisa Biscuit, a preliminary objection must be a pure point of law pleaded or arising clearly from pleadings. Whether the issues in the succession cause were directly and substantially in issue required evidence of the pleadings in that cause, and the alleged order of February 6, 2017 was a factual matter. The sub judice question under section 6 of the Civil Procedure Act should be raised by application supported by affidavit evidence, not preliminary objection.
Whether the ELC has jurisdiction over a dispute concerning land allegedly belonging to a deceased person's estate
Yes; the subject matter is ownership of and title to land, which falls squarely within Article 162(2)(b) and section 13 of the ELC Act
Jurisdiction is determined by subject matter, not by the capacity in which parties litigate. A claim for ownership of land as against a deceased person's estate does not strip the ELC of jurisdiction merely because an estate is involved. Claims to ownership of alleged estate property as between the estate and a third party should be resolved through civil suit, and any decree presented to the probate court for effect.
Whether the plaintiff met the threshold for a temporary injunction
Yes; a prima facie case with probability of success, irreparable injury and balance of convenience were demonstrated
The plaintiff produced the grant, sale agreement, Land Control Board consent, transfer documents and title, spending about Kshs 50 million; the disputed issue is whether it is a bonafide purchaser for value without notice. The plaintiff's assertion that defendants may not refund the purchase price was not substantively challenged, so damages would be inadequate. The plaintiff has been registered proprietor since 2016, tilting the balance of convenience.
Legal principles established
#- A preliminary objection must be a pure point of law based on undisputed facts; where facts must be ascertained or evidence adduced, it must be raised by application instead
- A claim for ownership of land as against the estate of a deceased person falls within the jurisdiction of the Environment and Land Court and does not oust that court's jurisdiction merely because a deceased's estate is involved
- Jurisdiction flows only from the Constitution or statute, and a court cannot expand it
Court orders
#- 1.The preliminary objection dated February 25, 2020 is not a valid preliminary objection and the same is struck out
- 2.A declaration that this court has jurisdiction to hear and determine the matter
- 3.An order restraining the defendants, their agents, employees and/or servants from selling, transferring, disposing of and/or interfering in any manner whatsoever with the parcel of land known as Donyo Sabuk/Koma Rock/Block 1/67744 (originally Donyo Sabuk/Koma Rock/Block 1/584) pending hearing and determination of the suit
- 4.Costs of the application awarded to the plaintiff/applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 and section 13 of the Environment and Land Court Act No 19 of 2011
Relief refused
#Striking out of the suit and the application as sought under the preliminary objection
The preliminary objection was not a valid or proper preliminary objection as it mixed contested factual matters with points of law
Costs
Costs of the application are awarded to the plaintiff/applicant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The preliminary objection dated February 25, 2020 is not a valid preliminary objection and the same is hereby struck out.
That this court has jurisdiction to hear and determine this matter.
An order be and is hereby issued restraining the defendants, their agents, employees and or servants from selling, transferring, disposing ofi and/or interfering in any other manner whatsoever with the parcel of land known as Donyo Sabuk/Koma Rock/Block 1/67744 (originally Donyo Sabuk/Koma Rock/Block 1 /584) pending hearing and determination of this suit.
Costs of the application are awarded to the plaintifi/applicant.
A claim for ownership of land as against the estate of a deceased person, does not take away the jurisdiction of this court, merely because an estate of a deceased person is involved.
Jurisdiction is everything, it is the power of the court to hear and determine a matter, and if the court has no jurisdiction to decide a dispute, it must down its tools as anything a court does, and any proceedings or orders made by a court, without jurisdiction is a nullity.
Issues in the judgment
#The caption of the suit is not stated in the judgment; the parties are identified only through the supporting affidavit and submissions
Internal inconsistency in the date the directors were ordered to appear before the High Court
Counsel and the judgment refer inconsistently to Succession Cause No 151 of 2014 and No 151 of 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Serenade Properties Limited v Nthiwa & 3 others (Sued as Administrators of the Estate of the late John Nthiwa Nzioka (deceassed)) (Environment & Land Case 5 of 2020) [2022] KEELC 3910 (KLR)", Case Analysis (2022). ELC Case of Machakos (application dated January 27, 2020; preliminary objection dated February 25, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3910/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.