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ELCPartially AllowedNot stated in the judgment (Plaint dated 4/06/2024)

Gitere & another (Suing as Administrators of the Estate of Gitere Kahura) v Gitere & another (Civil Case E223 of 2024) [2025] KEELC 3557 (KLR)

Environment and Land Court
6 May 2025
7,024 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (Mogeni J) on the Plaintiffs' Notice of Motion dated 4/06/2024 seeking temporary injunctions restraining the 1st Defendant from dealing with suit property LR 209/2763/18 and restraining the 2nd Defendant from releasing the purchase price of Kshs. 64,000,000, together with the 1st Defendant's Notice of Preliminary Objection dated 22/07/2024. The Plaintiffs, administrators of the estate of the late Gitere Kahura, allege that the 1st Defendant fraudulently extended the lease to himself and sold the property to the 2nd Defendant for Kshs. 64 million, and sought to impeach the 2nd Defendant's title under Section 26 of the Land Registration Act. The 1st Defendant objected that the dispute is a succession matter outside the ELC's jurisdiction under Article 162(2)(b), that the plaintiffs lack locus standi since the property is not in the confirmed grant, and that the claim is time-barred. The court held that it has jurisdiction: the dispute concerns title to land and the bona fide purchaser defence, and third-party disputes over a deceased's property need not be determined in the probate court. The sub judice and limitation objections also failed. On the application, applying Giella v Cassman Brown, the court found a prima facie case, a likelihood of irreparable harm from ongoing demolition and evictions, and that the balance of convenience favours the status quo. The application was allowed in terms of prayers 5, 6 and 7 and the preliminary objection dismissed, with costs of both to be in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection raises pure points of law
  2. 2.Whether the Court has jurisdiction to hear and determine this suit
  3. 3.Whether the Application dated 4/06/2024 is merited

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 9
02

Whether the suit is sub judice given the pending Succession Cause No. 265 of 2009

Holding

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.

Reasoning

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.

p. 10
03

Whether the plaintiffs' claim is time-barred under the Limitation of Actions Act

Holding

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.

Reasoning

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.

p. 10
04

Whether the plaintiffs established a prima facie case, irreparable harm and balance of convenience for a temporary injunction

Holding

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.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 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. 2.Dismissal of the 1st Defendant's Notice of Preliminary Objection dated 22/07/2024
  3. 3.Costs of both the Application and the Preliminary Objection to be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 12Final orders - injunction granted and preliminary objection dismissed
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.
p. 10Dismissal of the preliminary objection
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.
p. 9Jurisdiction of the ELC over estate-origin land disputes with third parties
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.
p. 8Limits of probate court jurisdiction
It is not enough to wave the title under challenge. The balance of convenience always tilts in favour of maintaining the status quo.
p. 12Balance of convenience in interlocutory injunctions
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.
p. 11Interlocutory stage - no definitive findings of fact

Issues in the judgment

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material

The Notice of Motion is described as dated 4/06/2024 throughout, but the final order allows an application dated 14/06/2024

material

Conflicting dates of the death of Gitere Kahura: the Plaintiffs' supporting affidavit and the court's summary give different dates

minor

Internally inconsistent dates for the lease expiry and the 1st Defendant's extension, including an unexplained expiry date of 18/04/2019

minor

The 2nd Plaintiff and the 2nd Defendant are never identified by name in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.