1. By way of Summons dated 18th June 2024, the Appellant seeks the following orders;
1) Spent
2) That there be stay of proceedings and or further proceedings in this case pending the hearing and determination of Eldoret Environment and Land Case E006 of 2024 (OS).
3) That this court do issue any such further orders as it may deem expedient in the circumstances.
2. The Application is expressed to be brought under section 47 of the Law of Succession Act and Rule 23 of the ‘Law of Succession Rules’ and ‘all other enabling provisions of law’.
3. The Application is premised on the grounds on the face of it and the contents of the Supporting Affidavit sworn by Laureen Isiaho, Counsel on record for the Applicant. In her affidavit, counsel deponed that she was instructed by the Applicant to move this court by filing an objection claiming their respective shares comprised in L.R Uasin Gishu/Timboroa/60 which they purchased for the deceased in his lifetime. That since their claim has been rendered null and void by operation of law due to passage of time, the Applicants also instructed her to move the Environment and Land Court seeking declaratory orders by way of adverse possession.
4. Counsel confirmed having filed Eldoret ELC No. E006 of 2024, the pleadings of which she annexed and marked as LMI-1 and urged that being a claim on adverse possession she believes it to be sound that she moves the appropriate court for determination on the said issue. Further, that since as she has instituted the suit, the ownership of the aforesaid portion of land is therefore a subject in both this cause and Eldoret Environment and Lands Court which cases are both pending hearing and determination. She stated that the determination of ownership of the suit parcel of land by the Eldoret Environment and Lands Court will have a ripple effect on these proceedings, with a likelihood of the two courts issuing divergent orders if the matters are allowed to proceed concurrently. That this Therefore renders the issuance of stay orders in these proceedings necessary.
5. Counsel deponed that as the issue of ownership of the suit parcel may conclusively determine the pending objection proceedings and therefore, this application seeks to prevent duplication of proceedings. She further deponed that there is need to stay these proceedings to await the conclusion of the Environment and Land Court matter, being a court vested with the jurisdiction to hear and determine the question of ownership. She reiterated that it is in the interest of justice that the proceedings herein be stayed and further, that the Respondents will not be prejudiced.
6. In response to the Application, the 3rd Administrator filed a Replying Affidavit dated 17th September 2024. He deposed that the Objectors do not have locus standi in the matter to seek the said prayer and therefore the application is devoid of merit, and a tactic meant to delay the conclusion of this case. Further, that the prayers in the Environment and Land Court suit is for adverse possession; which therefore means they do not have an interest that has crystallized, yet. He urged that to grant the said prayers would amount to the court ousting its own jurisdiction in a matter which it is fully clothed to determine. Additionally, that the court cannot grant the said orders as the same would amount to assuming the jurisdiction of Environment and Land Court at the same time. He prayed the court dismiss the Application with costs for lack of merit.
7. Counsel for the Applicant filed a further affidavit dated 30th September 2024 in support of the Application. She urged that it is on record, as confirmed by counsel for the 1st and 2nd Administrators, that the Applicants indeed have an interest in the estate herein having purchased their respective portions from the deceased himself. That it is not in dispute that the Applicants have instituted Environment and Lands Court Cause No. E006/2024 claiming their said shares as confirmed by annexure LMM attached to the application. Further, that the allegation that the Applicants do not have locus standi to file the summons is a far cry from the truth as they are legitimate purchasers for value from the deceased himself therefore constituting legal liabilities to the estate.
8. Counsel reiterated the fact that the appropriate forum to determine issues of ownership of land is the Environment and Lands court and not this court as a probate court, whose sole function is primarily distribution of the deceased's estate to his/her legal beneficiaries. She stated that the Summons before court will go a long way in preventing the courts handling the matters from issuing contradictory orders on the interests being sought by the Applicant s/Objectors. She reiterated that the orders sought before the Environment and Lands Court is a preserve of the said court and therefore, the Respondent should not be heard to question the merit or otherwise of the suit.
9. Counsel deposed that the Respondent has not substantiated the prejudice he stands to suffer should this matter be stayed to await the determination of the case before the Environment and Lands Court. On the contrary, to the insinuation created by the Respondent to the effect that allowing the application would be tantamount to this court converting itself to an Environment and Lands Court, the primary objective of the application is to prevent concurrent proceedings, which may lead to contradictory outcomes hence embarrassing the concerned courts. She urged the court to allow the Application.
Applicants’ Submissions
10. Counsel reproduced the grounds of the Application and urged that there is need to stay these proceedings to enable the Environment and Land Court determine whether or not the Applicants have a beneficial interest in the suit parcel of land, which determination will automatically determine the pending distribution of the estate with regard to the claim by the Applicants. She submitted that the 1st and 2nd Administrators, being privy to the claim by the Applicants, are not opposed to the Summons under consideration. She referred to the issues raised in 3rd Administrators’ Replying Affidavit and submitted that the sole pertinent issue presenting itself for determination is whether this court has jurisdiction to hear and determine a land ownership dispute.
11. Counsel referred the court to the case of Owners of the Motor Vessel “Lilian S" vs Caltex Oil (Kenya) Ltd [1989] KLR 1 on jurisdiction and urged that if this court finds it lacks jurisdiction, then there is no point of going to the claim by the Applicants with regards to distribution of the estate. The same can be held in abeyance pending the determination of the Originating Summons. She urged that a court’s jurisdiction flows from either the Constitution or legislation or both, placing reliance on the case of the Supreme Court of Kenya in the case of Samuel Kamau Macharia vs KCB & 2 Others, Civil Application No. 2 of 2011. She cited the provisions of Article 165 (3) of the Constitution on the jurisdiction of the High Court urging that the Environment and Land Court Act 2011 was enacted and in Section 13 thereof, it confers the Environment and Land Court with jurisdiction. She reproduced the provisions therein.
12. Counsel additionally cited Rule 41(3) of the Probate and Administration Rules and the case of Priscilla Ndubi and Zipporah Mutiga vs Gerishon Gatobu Mbui, Meru Succession Cause No. 720 of 2013 on the duty of the probate court. Applying the principles therein to the present case, counsel argued that it is evident that the bone of contention goes to the ownership of LR No. Uasin Gishu/Timboroa/60. The Applicants' claim is that they have acquired their respective portions by way of adverse possession which can only be determined on merit by the Environment and Lands Court. She reiterated that pursuant to Article 165(5) of the Constitution, this court lacks jurisdiction in matters to do with the use occupation and title to land.
13. Counsel further submitted that it is also apparent that when a dispute regarding ownership in respect of the property of a deceased person arises, the court can set aside the share in dispute to await the outcome of the resolution of the dispute from the court with jurisdiction. In conclusion, she urged that the court to find that it lacks the requisite jurisdiction to determine the Applicants’ claim on adverse possession and allow the Application. The respondents did not file submissions.
14. Section 47 of the Law of Succession Act provides;
The High court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as maybe expedient.
15. Rule 73 of the Probate and Administration Rules provides that;
“Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as maybe necessary for the ends of justice or to prevent abuse of the court process.”
16. Rule 41(3) of the Probate and Administration Rules provides as follows;
(3) Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.
17. The issue of stay of proceedings was considered by in the case of Global Tours & Travel Limited Nairobi High Court Winding Up Case No. 43 of 2000 wherein Justice Ringera stated as follows in the case of
“As I understand the court, whether or not the grant a stay of proceedings on further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice……… The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the provisions and circumstances of granting or not granting the order….”.
18. In this case, the court notes that the estate of the deceased comprises of only one property which is L.R Uasin Gishu/Timboroa/60 which is the subject of the adverse possession claim in the Environment and Land Court matter herein referred to. The Applicants’ claim is that it purchased shares in the said land from the Deceased and are therefore the beneficial owners of the land hence their cause before the Environment and Land Court. That if the said court rightly finds in their favor, they will be entitled to the said portions of the estate as purchasers. The gist of the Respondents reply as contained in their Replying Affidavit is that the fact that such a claim has been lodged in the ELC Court is not denied.
19. It is not in dispute that the determination of matters relating to the use, occupation and title to land belong to the jurisdiction of the Environment and Land Court. It is also not disputed by the Respondents that the Applicants have filed a claim for adverse possession over L.R Uasin Gishu/Timboroa/60 before the said court.
20. By dint of Section 41(3) of the Probate and Administration Rules, where a situation such as the one before the court arises, the court is obligated to set aside the particular share or estate or the property comprising any such claim and await the determination thereof. For reasons that in this case, the claim is over the ownership of the entire estate of the deceased, then the position is that these entire proceedings ought to be set aside to await the determination of the Environment and Land Court case and I now hereby so find. In this regard, the Application by the Applicant has merit and the same is allowed in its entirety as follows;
a) That an order of stay of proceedings and/or any further proceedings in this cause being Eldoret HCSUCC Cause No. 5 of 2023 is now hereby issued pending the hearing and determination of Eldoret ELC cause No. E006 of 2024 (OS).
b) That this matter shall be further mentioned on 9th December 2025 for an update of the position of the Eldoret ELC Cause No. E006/2024
c) That each party is to bear their own costs
Read Dated and Signed at ELDORET on 9th July 2025
1) Spent
2) That there be stay of proceedings and or further proceedings in this case pending the hearing and determination of Eldoret Environment and Land Case E006 of 2024 (OS).
3) That this court do issue any such further orders as it may deem expedient in the circumstances.
2. The Application is expressed to be brought under section 47 of the Law of Succession Act and Rule 23 of the ‘Law of Succession Rules’ and ‘all other enabling provisions of law’.
3. The Application is premised on the grounds on the face of it and the contents of the Supporting Affidavit sworn by Laureen Isiaho, Counsel on record for the Applicant. In her affidavit, counsel deponed that she was instructed by the Applicant to move this court by filing an objection claiming their respective shares comprised in L.R Uasin Gishu/Timboroa/60 which they purchased for the deceased in his lifetime. That since their claim has been rendered null and void by operation of law due to passage of time, the Applicants also instructed her to move the Environment and Land Court seeking declaratory orders by way of adverse possession.
4. Counsel confirmed having filed Eldoret ELC No. E006 of 2024, the pleadings of which she annexed and marked as LMI-1 and urged that being a claim on adverse possession she believes it to be sound that she moves the appropriate court for determination on the said issue. Further, that since as she has instituted the suit, the ownership of the aforesaid portion of land is therefore a subject in both this cause and Eldoret Environment and Lands Court which cases are both pending hearing and determination. She stated that the determination of ownership of the suit parcel of land by the Eldoret Environment and Lands Court will have a ripple effect on these proceedings, with a likelihood of the two courts issuing divergent orders if the matters are allowed to proceed concurrently. That this Therefore renders the issuance of stay orders in these proceedings necessary.
5. Counsel deponed that as the issue of ownership of the suit parcel may conclusively determine the pending objection proceedings and therefore, this application seeks to prevent duplication of proceedings. She further deponed that there is need to stay these proceedings to await the conclusion of the Environment and Land Court matter, being a court vested with the jurisdiction to hear and determine the question of ownership. She reiterated that it is in the interest of justice that the proceedings herein be stayed and further, that the Respondents will not be prejudiced.
6. In response to the Application, the 3rd Administrator filed a Replying Affidavit dated 17th September 2024. He deposed that the Objectors do not have locus standi in the matter to seek the said prayer and therefore the application is devoid of merit, and a tactic meant to delay the conclusion of this case. Further, that the prayers in the Environment and Land Court suit is for adverse possession; which therefore means they do not have an interest that has crystallized, yet. He urged that to grant the said prayers would amount to the court ousting its own jurisdiction in a matter which it is fully clothed to determine. Additionally, that the court cannot grant the said orders as the same would amount to assuming the jurisdiction of Environment and Land Court at the same time. He prayed the court dismiss the Application with costs for lack of merit.
7. Counsel for the Applicant filed a further affidavit dated 30th September 2024 in support of the Application. She urged that it is on record, as confirmed by counsel for the 1st and 2nd Administrators, that the Applicants indeed have an interest in the estate herein having purchased their respective portions from the deceased himself. That it is not in dispute that the Applicants have instituted Environment and Lands Court Cause No. E006/2024 claiming their said shares as confirmed by annexure LMM attached to the application. Further, that the allegation that the Applicants do not have locus standi to file the summons is a far cry from the truth as they are legitimate purchasers for value from the deceased himself therefore constituting legal liabilities to the estate.
8. Counsel reiterated the fact that the appropriate forum to determine issues of ownership of land is the Environment and Lands court and not this court as a probate court, whose sole function is primarily distribution of the deceased's estate to his/her legal beneficiaries. She stated that the Summons before court will go a long way in preventing the courts handling the matters from issuing contradictory orders on the interests being sought by the Applicant s/Objectors. She reiterated that the orders sought before the Environment and Lands Court is a preserve of the said court and therefore, the Respondent should not be heard to question the merit or otherwise of the suit.
9. Counsel deposed that the Respondent has not substantiated the prejudice he stands to suffer should this matter be stayed to await the determination of the case before the Environment and Lands Court. On the contrary, to the insinuation created by the Respondent to the effect that allowing the application would be tantamount to this court converting itself to an Environment and Lands Court, the primary objective of the application is to prevent concurrent proceedings, which may lead to contradictory outcomes hence embarrassing the concerned courts. She urged the court to allow the Application.
Applicants’ Submissions
10. Counsel reproduced the grounds of the Application and urged that there is need to stay these proceedings to enable the Environment and Land Court determine whether or not the Applicants have a beneficial interest in the suit parcel of land, which determination will automatically determine the pending distribution of the estate with regard to the claim by the Applicants. She submitted that the 1st and 2nd Administrators, being privy to the claim by the Applicants, are not opposed to the Summons under consideration. She referred to the issues raised in 3rd Administrators’ Replying Affidavit and submitted that the sole pertinent issue presenting itself for determination is whether this court has jurisdiction to hear and determine a land ownership dispute.
11. Counsel referred the court to the case of Owners of the Motor Vessel “Lilian S" vs Caltex Oil (Kenya) Ltd [1989] KLR 1 on jurisdiction and urged that if this court finds it lacks jurisdiction, then there is no point of going to the claim by the Applicants with regards to distribution of the estate. The same can be held in abeyance pending the determination of the Originating Summons. She urged that a court’s jurisdiction flows from either the Constitution or legislation or both, placing reliance on the case of the Supreme Court of Kenya in the case of Samuel Kamau Macharia vs KCB & 2 Others, Civil Application No. 2 of 2011. She cited the provisions of Article 165 (3) of the Constitution on the jurisdiction of the High Court urging that the Environment and Land Court Act 2011 was enacted and in Section 13 thereof, it confers the Environment and Land Court with jurisdiction. She reproduced the provisions therein.
12. Counsel additionally cited Rule 41(3) of the Probate and Administration Rules and the case of Priscilla Ndubi and Zipporah Mutiga vs Gerishon Gatobu Mbui, Meru Succession Cause No. 720 of 2013 on the duty of the probate court. Applying the principles therein to the present case, counsel argued that it is evident that the bone of contention goes to the ownership of LR No. Uasin Gishu/Timboroa/60. The Applicants' claim is that they have acquired their respective portions by way of adverse possession which can only be determined on merit by the Environment and Lands Court. She reiterated that pursuant to Article 165(5) of the Constitution, this court lacks jurisdiction in matters to do with the use occupation and title to land.
13. Counsel further submitted that it is also apparent that when a dispute regarding ownership in respect of the property of a deceased person arises, the court can set aside the share in dispute to await the outcome of the resolution of the dispute from the court with jurisdiction. In conclusion, she urged that the court to find that it lacks the requisite jurisdiction to determine the Applicants’ claim on adverse possession and allow the Application. The respondents did not file submissions.
14. Section 47 of the Law of Succession Act provides;
The High court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as maybe expedient.
15. Rule 73 of the Probate and Administration Rules provides that;
“Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as maybe necessary for the ends of justice or to prevent abuse of the court process.”
16. Rule 41(3) of the Probate and Administration Rules provides as follows;
(3) Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.
17. The issue of stay of proceedings was considered by in the case of Global Tours & Travel Limited Nairobi High Court Winding Up Case No. 43 of 2000 wherein Justice Ringera stated as follows in the case of
“As I understand the court, whether or not the grant a stay of proceedings on further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice……… The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the provisions and circumstances of granting or not granting the order….”.
18. In this case, the court notes that the estate of the deceased comprises of only one property which is L.R Uasin Gishu/Timboroa/60 which is the subject of the adverse possession claim in the Environment and Land Court matter herein referred to. The Applicants’ claim is that it purchased shares in the said land from the Deceased and are therefore the beneficial owners of the land hence their cause before the Environment and Land Court. That if the said court rightly finds in their favor, they will be entitled to the said portions of the estate as purchasers. The gist of the Respondents reply as contained in their Replying Affidavit is that the fact that such a claim has been lodged in the ELC Court is not denied.
19. It is not in dispute that the determination of matters relating to the use, occupation and title to land belong to the jurisdiction of the Environment and Land Court. It is also not disputed by the Respondents that the Applicants have filed a claim for adverse possession over L.R Uasin Gishu/Timboroa/60 before the said court.
20. By dint of Section 41(3) of the Probate and Administration Rules, where a situation such as the one before the court arises, the court is obligated to set aside the particular share or estate or the property comprising any such claim and await the determination thereof. For reasons that in this case, the claim is over the ownership of the entire estate of the deceased, then the position is that these entire proceedings ought to be set aside to await the determination of the Environment and Land Court case and I now hereby so find. In this regard, the Application by the Applicant has merit and the same is allowed in its entirety as follows;
a) That an order of stay of proceedings and/or any further proceedings in this cause being Eldoret HCSUCC Cause No. 5 of 2023 is now hereby issued pending the hearing and determination of Eldoret ELC cause No. E006 of 2024 (OS).
b) That this matter shall be further mentioned on 9th December 2025 for an update of the position of the Eldoret ELC Cause No. E006/2024
c) That each party is to bear their own costs
Read Dated and Signed at ELDORET on 9th July 2025