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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to grant the orders sought
- 2.Whether the applicant deserves the orders sought
Key legal issues
#Whether the ELC has jurisdiction to enforce a mediation agreement requiring defendants to commence succession proceedings
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.
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.
Whether parties could by consent clothe the ELC with jurisdiction over succession
No. Jurisdiction cannot be conferred by consent.
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.
Legal principles established
#- 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
#- 1.The application dated 16th June 2025 is struck out for want of jurisdiction
- 2.Costs of the application awarded to the respondents
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 as read with section 13 of the Environment and Land Court Act
Relief refused
#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
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
Costs
Costs of the application to the respondents
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.
In short, parties by agreement cannot clothe a court with jurisdiction, where none exist in law.
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.
I therefore strike out the application dated 16th June 2025 for want of jurisdiction, with costs to the respondents.
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.
Issues in the judgment
#The plaintiff and defendants are not named in the judgment; parties are referred to only by their roles
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.