Margaret Mukami Macharia (Suing as the Administrator of the estate) Esther Wangui Macharia v Jesse Maina Gitau [2018] KEELC 877 (KLR)
The bottom line
#The court refused to stop a Kahawa West plot's development because the applicant waited 14 years after the sale and had no strong ownership case.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction vis-à-vis a pending succession cause
The preliminary objection was overruled; the court had jurisdiction because the suit was against a trespasser who is not a beneficiary or claimant in the succession cause.
The respondent relied on three authorities where the parties were relatives litigating within a succession context. Here the defendant purchased from Susan Njeri, who had bought from the applicant's deceased brother to whom the plot had been bequeathed. Since the defendant claims no part of the estate, succession jurisdiction is not engaged.
Whether the applicant met the Giella threshold for an injunction
The applicant failed to show a prima facie case with probability of success; the property had been sold in 2002 and damages would be an adequate remedy.
The evidence showed the suit property had been bequeathed to the applicant's deceased brother, who sold it to Susan Njeri in 2002, and she sold to the respondent in 2015. The applicant claimed the property only in 2016, and no documents were proved stolen. The application was therefore dismissed.
Legal principles established
#- Where a defendant is sued as a trespasser and claims nothing in a pending succession cause, the succession court's exclusive jurisdiction does not oust the land court's jurisdiction over the trespass suit.
- An injunction will not issue where the applicant has no prima facie case and damages would suffice.
Court orders
#- 1.Preliminary objection on jurisdiction overruled
- 2.The applicant's Notice of Motion dated 7th September 2016 seeking an injunction dismissed
- 3.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over suits relating to land (not stated by specific provision in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Mukami Macharia (Suing as the Administrator of the estate) Esther Wangui Macharia v Jesse Maina Gitau [2018] KEELC 877 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/877/eng@2018-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.