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ELCStruck OutNot stated in judgment

Ondu (Substituted by Mathew Obunga Okore) v Ondu (Substituted by Monica Mugoya & 2 others) (Environment and Land Case E021 of 2021) [2025] KEELC 8216 (KLR)

Environment and Land Court
19 November 2025
1,544 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kakamega court struck out a bid to enforce a mediated land deal because only the Probate court, not the Environment and Land Court, can handle succession matters.

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 Kakamega (A. Nyukuri, Judge) on the plaintiff's application dated 16th June 2025. The parties had recorded a mediation agreement on 5th May 2022 over land parcel Kakamega/Shamberere/1233, under which a survey confirmed 1 hectare, the defendants agreed not to evict the plaintiff, the plaintiff agreed to purchase 1.5 acres for the defendants within the same area, and the defendants agreed to immediately commence succession proceedings over the parcel to transfer 2.5 acres to the plaintiff. The plaintiff complied by purchasing parcel Butsotso/Ingotse/4104, but the defendants did not commence succession proceedings. The plaintiff sought an order compelling them to do so, or alternatively that the Deputy Registrar sign the transfer documents. The respondents opposed via preliminary objection, arguing the ELC lacks jurisdiction over succession matters reserved for the High Court under the Law of Succession Act. The 1st respondent, a 95-year-old widow, also complained the purchased land was 15 km away contrary to the agreement. The court framed two issues: jurisdiction and whether the orders were deserved. Holding that succession is conducted in respect of a deceased person rather than land, and that compelling filing of succession proceedings belongs to the Probate and Administration court under section 62 of the Law of Succession Act and Rule 22 of the Probate and Administration Rules, the court found it lacked jurisdiction. Relying on Samuel Kamau Macharia v Kenya Commercial Bank, it held jurisdiction cannot be conferred by consent. The application was struck out for want of jurisdiction, with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether this court has jurisdiction to grant the orders sought
  2. 2.Whether the applicant deserves the orders sought

Key legal issues

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01

Whether the ELC has jurisdiction to enforce a mediation agreement requiring defendants to commence succession proceedings

Holding

No. Compelling the filing of succession proceedings is within the jurisdiction of the Probate and Administration court; the ELC's jurisdiction is limited to environment and land use, occupation and title matters.

Reasoning

The court held that succession is done in respect of a deceased person, not land, and no deceased person was identified in the mediation agreement. The ELC's jurisdiction is delineated by Article 162(2)(b) of the Constitution and section 13 of the ELC Act, covering environment and use, occupation and title to land. Compelling filing of succession is a matter for citation in the Probate court, not the ELC.

p. 3
02

Whether parties could by consent clothe the ELC with jurisdiction over succession

Holding

No. Jurisdiction cannot be conferred by consent.

Reasoning

Relying on the Supreme Court decision in Samuel Kamau Macharia v Kenya Commercial Bank, the court held that jurisdiction flows from the Constitution or statute and cannot be conferred by consent of parties. A consent or mediation agreement cannot trump the Law of Succession Act's provisions on who may apply for a grant.

p. 3

Legal principles established

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  • Jurisdiction flows from the Constitution or statute or both and cannot be conferred by consent of the parties
  • Parties by agreement cannot clothe a court with jurisdiction where none exists in law
  • Compelling a person to file succession proceedings is a matter for citation in the Probate and Administration court, not the ELC

Court orders

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  1. 1.The application dated 16th June 2025 is struck out for want of jurisdiction
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with section 13 of the Environment and Land Court Act

Relief refused

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Order compelling the defendants to immediately commence succession proceedings in respect of parcel Kakamega/Shamberere/1233 to transfer 2.5 acres to the plaintiff

The court lacks jurisdiction to compel the filing of succession proceedings; that power belongs to the Probate and Administration court under section 62 of the Law of Succession Act and Rule 22 of the Probate and Administration Rules

p. 3

Alternative order authorising the Deputy Registrar of the ELC to sign all relevant documents to cause the transfer of the parcel to the plaintiff

Fell with the primary order when the application was struck out for want of jurisdiction

p. 3

Costs

Costs of the application to the respondents

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.

In short, parties by agreement cannot clothe a court with jurisdiction, where none exist in law.
p. 3Jurisdiction cannot be conferred by consent
this court has no power to compel anyone to file succession proceedings in regard to the estate of a deceased person, even if the parties consent to clothe this court with such power.
p. 3Limits of ELC jurisdiction over succession
I therefore strike out the application dated 16th June 2025 for want of jurisdiction, with costs to the respondents.
p. 3Final orders
It is high time that parties and their advocates take a moment when drafting agreements, consents or mediation agreements to ensure that such agreements or consents are enforceable within the courts where they are filed.
p. 3Drafting of mediation agreements

Issues in the judgment

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minor

The plaintiff and defendants are not named in the judgment; parties are referred to only by their roles

minor

The judgment indicates the respondents' filings are dated 14th November 2025, which post-dates no event but precedes the 19th November 2025 delivery - internally consistent; however the 1st respondent states the application was served on 13/11/2025, a day before filing of the reply dated 14th November 2025, which is tight but not contradictory

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, "Ondu (Substituted by Mathew Obunga Okore) v Ondu (Substituted by Monica Mugoya & 2 others) (Environment and Land Case E021 of 2021) [2025] KEELC 8216 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8216/eng@2025-11-19

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