In re Estate of M’rwito Manga Alias Chabari Manga (Deceased) [2022] KEHC 15826 (KLR)

In re Estate of M’rwito Manga Alias Chabari Manga (Deceased) (Succession Cause 4 of 1994) [2022] KEHC 15826 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15826 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 4 of 1994

TW Cherere, J

December 1, 2022

IN THE MATTER OF THE ESTATE OF M’RWITO MANGA ALIAS CHABARI MANGA (DECEASED)

Between

Philis Kajuju

Petitioner

and

Peterson Kobia

Administrator

and

Jediel Muthuri

1st Respondent

Patrick Mutai M’Rwito

2nd Respondent

Cecilia Gaiti M’Rwito

3rd Respondent

David Mutwiri

4th Respondent

Kenneth Kirimi

5th Respondent

Ruling

1. By a judgment dated June 16, 2021, Lessit J (as she then was) ruled that the objector had failed to prove that his mother Charity Njiru was wife of deceased and that Jediel Muthuri (objector) and his siblings Patrick Mutai and Cecilia Gaiti were children of the deceased.

2. I have considered the summons dated July 18, 2022 in the light of the affidavits on record and submissions by the parties. Respondents have raised the issue of this court’s jurisdiction to determine this matter concerning eviction of respondents from LR Abogeta/U-Chure/424 on the basis that they are not deceased’s children.

3. The Environment and Land Court is a statutory creation by the Constitution of Kenya under the provision of article 162 (b). From the preamble of the ELC Act, the jurisdiction of the court is defined as “……a superior court to hear and determine disputes relating to the environment and the use and occupation of, and the titles to, land and to make provisions for its jurisdiction functions and powers and for connected purposes……”.

4. In my considered view, the issue before the court is one of occupation of the respondents on LR Abogeta/U-Chure/424 and that places the cause of action squarely in the jurisdiction of the Environment & Land Court Act (ELC Act) and consequently the Environment & Land Court (ELC court).

5. By placing a dispute relating to occupation of land before the probate court, applicant is asking the court to engage in matters that are beyond its jurisdiction.

6. From the foregoing, I have come to the conclusion that this court lacks the requisite jurisdiction to issue orders of eviction against the respondents. I echo Nyarangi JA in the case of The Owners of the Motor Vessel Lilian 'S' v Caltex Kenya Limited(1989) KLR 1 that“………. jurisdiction is everything without it; a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

7. In the end, I find that summons dated July 18, 2022 has no merit and it is dismissed with costs to the respondents.

DATED IN MERU THIS 01ST DAY OF DECEMBER 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - Mr. Murango for Murango Mwenda & Co AdvocatesFor Respondents - Mr. Gichunge for Gichunge Muthuri & Company Advocates