Gitere & another (Suing as Administrators of the Estate of Gitere Kahura) v Gitere & another (Civil Case E223 of 2024) [2025] KEELC 3557 (KLR)
The bottom line
#A Kenyan court blocked a Kshs 64 million land sale, ruling that disputes over land sold from a deceased person's estate belong in the land court, not the succession court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection raises pure points of law
- 2.Whether the Court has jurisdiction to hear and determine this suit
- 3.Whether the Application dated 4/06/2024 is merited
Key legal issues
#Whether the Environment and Land Court, rather than the succession court, has jurisdiction over a dispute concerning land allegedly fraudulently taken from a deceased's estate and sold to a third party
The ELC is vested with jurisdiction because the dispute is essentially about ownership and title to land, involving the bona fide purchaser defence; succession matters between the estate and third parties fall to be determined under the Civil Procedure Act.
The court applied Article 162(2)(b) and Section 13(2) of the Environment and Land Court Act, which confer power over disputes relating to title to land. Relying on In Re Estate of Alice Mumbua Mutua, it noted that the probate court's mandate is limited to identifying estate assets, survivors and beneficiaries, and that disputes between an estate and third parties must be resolved in a civil court. The plaintiffs were not claiming as beneficiaries but seeking to impeach the 2nd Defendant's title under Section 26 of the Land Registration Act.
Whether the suit is sub judice given the pending Succession Cause No. 265 of 2009
The sub judice objection fails because it was not pleaded in the defence and the pleadings in the succession cause were not placed before the court; moreover, the 2nd Defendant is not a party to the succession cause and the suit property is not mentioned in the ruling of 30/01/2024.
Section 6 of the Civil Procedure Act requires the same parties litigating under the same title over the same subject matter. The court found the objection improperly invoked: the sub judice issue was not pleaded, the succession pleadings were not exhibited, and a scrutiny of Justice E.K Ogola's order of 30/01/2024 showed that neither the 2nd Defendant nor the suit property featured in it.
Whether the plaintiffs' claim is time-barred under the Limitation of Actions Act
The court could not find the plaintiffs time-barred, since the property was sold in 2022 and there was no evidence the alleged fraud was discovered earlier than the plaintiffs claimed.
The 1st Defendant anchored the limitation plea on the 2003/2004 extinguishment of the lease. The court instead observed that the suit, filed in 2024, followed the 2022 sale to the 2nd Defendant, and in the absence of evidence of earlier discovery of the fraud, limitation could not be determined as a preliminary point on contested facts.
Whether the plaintiffs established a prima facie case, irreparable harm and balance of convenience for a temporary injunction
All three Giella limbs were satisfied: documents showing the deceased's extension approval were unrebutted, demolition and eviction threatened irreparable harm, and the balance of convenience favours maintaining the status quo.
The 1st Defendant produced no documents supporting his claim of allocation of the property by his late father in 2007 or the extension approval of 18/04/2019. The plaintiffs' documents showing the deceased's approved but uncompleted extension were unrebutted. Photographs showed demolition underway, threatening the plaintiffs' rights. The court held that waving a title under challenge is insufficient and that the balance of convenience favours maintaining the status quo.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be founded on disputed facts or the exercise of judicial discretion
- Jurisdiction is foundational; where a court lacks it, it must down its tools
- Not every dispute over property of a dead person must be determined by the probate court; disputes between an estate and third parties are resolved under the Civil Procedure Act and Rules
- An Environment and Land Court has jurisdiction over a claim to impeach a title to land even where the property originated in a deceased's estate
Court orders
#- 1.Allowance of the Plaintiffs'/Applicants' Notice of Motion dated 4/06/2024 (referred to in the order as dated 14/06/2024) in terms of prayers No. 5, 6 and 7, being temporary injunctions restraining the 1st and 2nd Defendants from dealing with the suit property and restraining payment of the Kshs. 64,000,000 purchase price
- 2.Dismissal of the 1st Defendant's Notice of Preliminary Objection dated 22/07/2024
- 3.Costs of both the Application and the Preliminary Objection to be in the cause
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 and Section 13(2) of the Environment and Land Court Act
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.
Consequently, the Court allows the Plaintifis'/Applicants' Notice of Motion Application dated 14/06/2024 in terms of prayers No. 5, 6 and 7 with costs to be in the cause. However, the Court dismisses the 1st Defendant's Notice of Preliminary Objection dated 22/07/2024 with costs to be in the cause.
Thus as already stated, it is this Court's finding that the 1st Defendant's Notice of Preliminary Objection dated 22/07/2024 is devoid of merit and the same is hereby dismissed.
the suit property is outside the realm of the succession Court, the same having been sold ofi to the 2nd Defendant. Who is seeking to rely on the defence of a bonafide purchaser for value without notice, a question which undoubtedly involves the Application of the law on title to land and which this Court is competent to determine.
not every dispute over property of a dead person ought to be pushed to the probate Court. The interventions by that Court are limited to what I have stated above.
It is not enough to wave the title under challenge. The balance of convenience always tilts in favour of maintaining the status quo.
At the interlocutory stage the Court should not venture into making definitive findings of fact law and particularly where the afidavits filed are contradictory as the Court cannot believe or disbelieve the statements made on oath of either party without in efiect trying the case.
Issues in the judgment
#The Notice of Motion is described as dated 4/06/2024 throughout, but the final order allows an application dated 14/06/2024
Conflicting dates of the death of Gitere Kahura: the Plaintiffs' supporting affidavit and the court's summary give different dates
Internally inconsistent dates for the lease expiry and the 1st Defendant's extension, including an unexplained expiry date of 18/04/2019
The 2nd Plaintiff and the 2nd Defendant are never identified by name in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitere & another (Suing as Administrators of the Estate of Gitere Kahura) v Gitere & another (Civil Case E223 of 2024) [2025] KEELC 3557 (KLR)", Case Analysis (2025). Not stated in the judgment (Plaint dated 4/06/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3557/eng@2025-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.