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ELCPartially AllowedELC Case of Kitale (number not stated in judgment)· [2025] KEELC 1165 (KLR)

LCL v WLM (Environment & Land Case 31 of 2019) [2025] KEELC 1165 (KLR)

Environment and Land Court
12 March 2025
CNC.K. NZILI
2,629 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kitape court protected a wife's share of family land but said only the High Court can decide who owns what in a marriage.

What this practically means

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Executive summary

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The plaintiff, the first wife of the defendant under a marriage contracted on 29/5/1971 and still subsisting, sought declarations that five properties - West Pokot/Siyoi 'A'/4XX9, 4XX0, 4XX1, West Pokot/Chepkono/1X2, plot KX Makutano Township and BX Siyoi - are matrimonial properties vesting in both spouses, an order for their transfer into joint names in undivided shares, and preservation orders. She testified that the properties were acquired and developed during the marriage before the defendant took a second wife, and that he had secretly transferred one parcel to himself and the co-wife's children and intended to dispose of the Makutano plot. The defendant admitted acquisition during the marriage but counterclaimed for declarations that various parcels belong to the second house, his son, and the family of a late exchange partner, and for a permanent injunction against the plaintiff. The court framed five issues, chief among them jurisdiction. Relying on WMM v EMW, JUV v GKR and the Matrimonial Property Rules 2022, it held that the declaration of matrimonial property and determination of spousal shares fall within the High Court's jurisdiction, not that of the Environment and Land Court, even though the ELC has jurisdiction over land title disputes under Section 13(2) of the ELC Act. The court found the plaintiff had proved her claim on a balance of probabilities as regards preservation, issued an inhibition order preserving the suit properties in their current status and occupation, and withdrew the suit, transferring it to the High Court at Kitale for disposal. No express costs order was made.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to declare properties matrimonial property and determine spousal shares during a subsisting marriage

Holding

The court lacks jurisdiction over the declaration of matrimonial property and the determination of spousal shares; that jurisdiction lies with the High Court, while preservation of the properties falls within ELC jurisdiction.

Reasoning

The Matrimonial Property Act does not define 'the court'. Under Section 13(2) of the ELC Act the ELC handles land use, title and instruments, but the High Court hears matrimonial causes and dissolution of marriage. Rule 5 of the Matrimonial Property Rules 2022 contemplates applications on dissolution or, under Rule 5(c), during subsistence of marriage in the High Court. Following WMM v EMW and JUV v GKR, the shares question belongs to the High Court, while an inhibition to preserve the properties is within ELC power.

p. 5
02

Whether the suit properties should be preserved pending determination by the court with jurisdiction

Holding

Yes - an inhibition order was issued to preserve the properties in their current status and occupation.

Reasoning

The parties did not dispute that the marriage is subsisting, that the properties were acquired during the marriage, and that they are used by both spouses and third parties. The plaintiff feared disposal of Plot KX and had placed cautions on the properties. On a balance of probabilities, the court found preservation justified to maintain the status quo until the competent court determines the remaining prayers.

p. 5
03

Whether the plaintiff proved entitlement to half of the suit properties

Holding

Not determined - the claim for sharing and registration of half shares was found to fall outside the court's jurisdiction.

Reasoning

Section 7 of the Matrimonial Property Act provides that ownership vests according to contribution and division occurs on divorce or dissolution. The marriage remained undissolved, and the authorities cited (including W & Another v N) indicate determination of actual shares awaits dissolution. The court therefore did not pronounce on entitlement but transferred the suit to the High Court for disposal.

p. 5

Legal principles established

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  • The High Court has unlimited original jurisdiction in matrimonial property matters, and Section 66(2) of the Marriage Act does not oust that jurisdiction.
  • The Environment and Land Court has jurisdiction over disputes relating to land use, planning, title and instruments granting enforceable interests under Section 13(2) of the Environment and Land Court Act.
  • Jurisdiction is conferred by statute or the Constitution and cannot be conferred by consent of parties.
  • Under Section 12 of the Matrimonial Property Act, spousal consent is required prior to any sale and transfer of matrimonial property.

Court orders

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  1. 1.An inhibition order issued to preserve the suit properties in their current status and occupation until the hearing and determination of the rest of the prayers in the court with jurisdiction to do so.
  2. 2.The suit withdrawn and transferred to the High Court Kitale for disposal.

Authorities

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Legislation

  • Constitution of KenyaArticle 165(3)(a)
  • Constitution of KenyaArticle 45(3)
  • Matrimonial Property ActSection 17
  • Matrimonial Property ActSection 7
  • Matrimonial Property ActSection 12
  • Marriage Act 2014Section 66(2)
  • Environment and Land Court ActSection 13(2)
  • Matrimonial Property Rules 2022Rule 5 (and Rule 4(b) and (c))

Cases cited (8)

  • WMM -vs- EMW
    Petition 33 (E037 of 2022) [2023] KECA 36 KLR (16th June 2023) (Judgment)
  • W & Another -vs- N
    (E & Land Appeal E035 of 2021) [2024] KEELC 253 [KLR] (31st January 2024) (Judgment)
  • NWW -vs- LNM
    [2022] eKLR
  • RMM -vs- BAM
    Civil Appeal 367 of 2011 [2015] KECA 1013 [KLR] (20th February 2015) (Judgment)
  • JUV -vs- GKR
    [2021] eKLR
  • Benson Ambuti Adega & 2 Others -vs- Kibos Distillers Ltd & Others
  • GGM -vs- DR. MK
    Meru HC (OS) No. 1 of 2018
  • Mugo Muiru Investment Ltd -vs- EWB & Others
    [2017] eKLR
Jurisdiction invoked
Article 165(3)(a) of the Constitution and Section 13(2) of the Environment and Land Court Act, read with the Matrimonial Property Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "LCL v WLM (Environment & Land Case 31 of 2019) [2025] KEELC 1165 (KLR)", Case Analysis (2025). ELC Case of Kitale (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1165/eng@2025-03-12

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