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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 28th November 2012)· [2015] KEELC 751 (KLR)

Stephen K Gachuru & another v David Cururu Wangunyu ( Sued As The Administrator of The Estate of Lucy W Kuria Cururu (Deceased) [2015] KEELC 751 (KLR)

Environment and Land Court / High Court of Kenya
10 March 2015
2,765 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered an estate administrator to issue title deeds to family members whose houses he demolished, confirming you cannot take the law into your own hands.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the Court by Notice of Motion dated 28th November 2012 under Order 40 Rules 1 & 2 of the Civil Procedure Rules and Sections 1A, 3A and 63 of the Civil Procedure Act, seeking an injunction restraining the Defendant, the administrator of the estate of Lucy Wanjiku Kuria Cururu (deceased), from interfering with Dagoreti/Riruta/351, compensation for demolished structures, and an order compelling issuance of title deeds. The Plaintiffs bought portions of the deceased's land in 1987 and 1990, took possession, and were listed as beneficiaries entitled to 0.10 acres in the confirmed grant of 6th October 1995. The Defendant admitted demolishing their rental houses after a surveyor realigned boundaries, alleging encroachment and an agreement reached at the Chief's office. The court, applying Giella v Cassman Brown and Mrao v First American Bank, held that the Plaintiffs had a prima facie case with probability of success since the administrator demolished occupied structures without a court order or consent, effectively taking the law into his own hands; the balance of convenience favoured them. Relying on Trinity Prime Investment, the court declined interlocutory monetary compensation as the loss required proof at trial. Applying Kenya Breweries v Okeyo, however, it found special circumstances in the confirmed grant justifying a mandatory order compelling issuance of title deeds. The application was allowed in terms of prayers 3 and 5, with costs to the Plaintiffs, borne by the Defendant. Delivered by L. Gacheru, Judge, on 10th March 2015.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

Established: the Plaintiffs were beneficiaries in occupation whose houses were demolished by the administrator without a court order or their consent

Reasoning

Undisputed facts showed the Plaintiffs purchased and occupied portions of the deceased's land, were listed as beneficiaries in the confirmed grant of 1995, and their rental houses were demolished by or with the authority of the Defendant. The administrator took the law into his own hands without a court order or consent, giving the Plaintiffs an arguable case with probability of success.

p. 4
02

Interlocutory monetary compensation for demolition

Holding

Refused

Reasoning

The prayer was mandatory in nature and also sought in the main suit; the loss must be proved by calling evidence and production of exhibits. Granting it at the interlocutory stage would have the effect of ending the litigation before trial.

p. 4
03

Mandatory order compelling issuance of title deeds

Holding

Granted as a special-circumstances case

Reasoning

The confirmed grant of 1995 already specified the Plaintiffs' acreage as beneficiaries. Their entitlement was plain and obvious, capable of being resolved at once, and the confirmed grant constituted special circumstances justifying a mandatory injunction at the interlocutory stage.

p. 5

Legal principles established

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  • An administrator of an estate may not demolish structures of beneficiaries in occupation without a court order or their consent
  • Prima facie case test for interlocutory injunctions
  • Mandatory injunctions at interlocutory stage are granted only in special circumstances, e.g. where the issue is plain and obvious

Court orders

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  1. 1.Allowed the Notice of Motion dated 28th November 2012 in terms of prayers No. 3 and 5
  2. 2.Compelled the Defendant to issue the Plaintiffs with title deeds for their interest in the suit property
  3. 3.Plaintiffs/Applicants awarded costs of the application, to be borne by the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 & 2
  • Civil Procedure ActSections 1A, 3A and 63

Cases cited (8)

  • CMC Motors Group ltd & Another Vs Evans Kageche Boru
    Civil Appeal No. 295 of 2001
  • Giella Vs Cassman Brown & Co. Ltd
    1973 EA 358
  • EA Industries Vs Trufoods
    1972 EA 420
  • Mrao Ltd Vs First American Bank of Kenya and 2 others
    (2003) KLR 125
  • Narendra Chaganlal Solanki Vs Neepu Auto Spaces Ltd
    Kisumu High Court Civil Case No. 90 of 2003
  • Suleiman Vs Amboseli Resort ltd
    (2004) 2 KLR
  • Trinity Prime Investment Ltd Vs Savings and Loans and another
    Civil Appeal No. 90 of 1998
  • Kenya Breweries Ltd and another Vs Washington O. Okeyo
    Civil Appeal No. 332 of 2000
Jurisdiction invoked
Order 40 Rules 1 & 2 of the Civil Procedure Rules and Sections 1A, 3A and 63 of the Civil Procedure Act

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, "Stephen K Gachuru & another v David Cururu Wangunyu ( Sued As The Administrator of The Estate of Lucy W Kuria Cururu (Deceased) [2015] KEELC 751 (KLR)", Case Analysis (2015). Not stated in the judgment (Notice of Motion dated 28th November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/751/eng@2015-03-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.