Introduction
In Kenyan succession practice, disputes often arise over whether a parcel of land truly belongs to the deceased’s estate, perhaps because it was held in trust, transferred during the deceased’s lifetime, or registered to a third party. Must the High Court sitting as a Succession Court determine ownership, or must the parties go to the Environment and Land Court (ELC)? The answer depends on which line of authority the judge follows.
The Statutory Framework
Article 162(2)(b) (System of Courts) of the Constitution of Kenya 2010 empowered Parliament to establish Courts with the status of the High Court to hear disputes relating to the environment and the use and occupation of, and title to, land. Article 165(5) (High Court) of the Constitution of Kenya 2010 provides that the High Court shall not have jurisdiction over matters falling within the jurisdiction of those Courts.
On one hand, Section 13 (Jurisdiction of the Court) of the Environment and Land Court Act Cap. 8D vests the ELC with jurisdiction over disputes relating to land use, title, tenure, boundaries and the environment.
On the other hand, Section 47 (Jurisdiction of High Court) of the Law of Succession Act, Cap 160, empowers the High Court to determine any dispute under the Act and to make such orders as may be expedient.
The Case for the Environment and Land Court
In Joseph Koori Ngugi & another v Stephen Ndichu J. Mukima [2017] KEHC 1408 (KLR), the High Court reasoned that a claim that land was held in trust is really a dispute about title, which inheritance proceedings are not designed to resolve. In Monica Wangari Njiri & 4 others v Eunice Wanjiru Igamba & another [2016] KEHC 1427 (KLR), the Court held that the Succession Court’s powers do not extend to determining ownership of property or declaring trusts.
The same approach was followed in In re Estate of Noreri Chacha (Deceased) [2020] KEHC 275 (KLR), where the Court noted that the Law of Succession Act predates the 2010 Constitution and must be read in harmony with it, concluding that land ownership disputes arising in succession proceedings transcend the Succession Court’s jurisdiction.
More recently, in Diasproperty Limited & 5 others v Githae & 10 others [2024] KECA 318 (KLR), the Court of Appeal held that the Succession Court lacked jurisdiction over a land interest claim arising from estate property and could only have referred the claimant to the ELC. In Roche v Roche & another [2025] KECA 1637 (KLR), the Court of Appeal confirmed that customary trusts remain overriding interests under Section 28 of the Land Registration Act, suggesting the ELC is the more appropriate forum for such claims.
The Case for the Succession Court
Other recent Court of Appeal decisions take a different view. In Kabata v Mbugua [2025] KECA 524 (KLR), the Court of Appeal held that whether the deceased held property in trust could conveniently be determined in the succession proceedings, and that the Succession Court had not erred in deciding it.
That decision drew on Bena Nafula Makana & 2 others v Nyaoro Akoth Muka Crescentia & 8 others [2019] KECA 755 (KLR), which held that the real question is whether the dispute can conveniently be determined in succession proceedings or elsewhere, noting the Succession Court’s broad statutory powers.
Even the ELC has recognised this position. In PLR v JNR & another [2013] KEHC 5614 (KLR), it observed that ownership of a deceased person’s property, including land, is governed by the Law of Succession Act and is for the Succession Court to determine.
Unresolved Positions and the Path Forward
One emerging approach may offer a way through the impasse. In Butler & 4 others v Redhill Heights Investments Limited & another [2016] KEHC 1313 (KLR) (upheld by the Court of Appeal), the Court applied a “predominant purpose test”, asking whether the core of the dispute is who owns the land (pointing to the ELC) or how the estate should be distributed (pointing to the Succession Court). Though not yet widely adopted, it offers a principled middle path.
The Court of Appeal has thus reached different conclusions on the same question, reflecting the issue’s complexity and overlapping statutes. In Noreri Chacha, the Court acknowledged the inconvenience, cost and delay of moving between Courts, but held that a Court must not act beyond its legal authority.
Conclusion
Kenyan law supports two reasonable but competing answers: land ownership disputes belong in the ELC, or the Succession Court may decide them when they arise from the inheritance process. Until the Supreme Court provides a definitive answer, or Parliament amends the Environment and Land Court Act and Law of Succession Act to clarify the two Courts’ jurisdiction, families and their advisers should be aware that the outcome may depend on which approach the particular Court follows.