Peter Kiarie Wakang’u (Suing as the legal representative of the estate of the late Wakang’u Tumuti) v Peter Kahura Gitere & 4 others [2020] KEELC 973 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case to a beneficial 30-acre share of L.R No. 5980/4
The plaintiff failed: no evidence of payment, possession, coffee farming, or inclusion of the property in the deceased's succession estate; the 1978 sale agreement named only the 2nd defendant as purchaser
Apart from a letter from the Gatabakis' advocates, the plaintiff placed no evidence connecting the deceased to the suit property. No evidence of payment of the purchase price, of possession or coffee cultivation by the deceased, or of the property being listed in the succession cause was produced. The written 1978 agreement expressly named the 2nd defendant as purchaser. The claim that the Gatabakis were unpaid was also internally inconsistent with the claim that the deceased paid half the price.
Whether the plaintiff's unpleaded allegation of fraud against the subdivision and title could sustain the application
No: fraud was neither pleaded in the plaint nor strictly proved
The plaintiff alleged the subdivision was fraudulent and the 2nd defendant's title fake, but fraud was not pleaded in the plaint. The court reiterated that allegations of fraud must be pleaded and strictly proved, on a standard above a mere balance of probabilities, and much of the plaintiff's information was not within his personal knowledge. The Gatabakis, the allegedly defrauded registered owners, were not parties to the suit.
Irreparable harm and balance of convenience
Neither limb favoured the plaintiff; no possession meant no demonstrable harm, and the balance of convenience did not arise
Having failed to establish a prima facie case, the court need not consider irreparable harm. Further, the plaintiff had not shown that either he or the deceased was ever in possession, so no harm from refusing the injunction was visible. The balance of convenience arises only where the court is in doubt on the first two Giella limbs, which was not the case here.
The 3rd defendant's application for variation of interim orders and continued construction
Overtaken by events; the interim orders fell automatically upon dismissal of the plaintiff's application
The orders of 14th February 2019 and 11th July 2019 were interim orders pending determination of the plaintiff's application. Once that application was dismissed, the orders stood discharged, making review, variation or setting aside unnecessary. The prayer to continue construction and the injunction against the plaintiff and police likewise fell away.
Legal principles established
#- An applicant for an interlocutory injunction must show a prima facie case with a probability of success; failing that, irreparable injury not compensable in damages; and if in doubt, the balance of convenience
- The party asserting a prima facie case must show a clear and unmistakable right directly threatened; the applicant need not establish title, only a fair and bona fide question to raise, on a balance of probabilities
- An allegation of fraud must be both pleaded and strictly proved; something more than a balance of probabilities is required
- The balance of convenience is considered only where the court is in doubt on the first two Giella conditions
Court orders
#- 1.The plaintiff's Notice of Motion application dated 4th February, 2019 is dismissed with costs
- 2.Consequently, the orders granted on 14th February, 2019 and 11th July, 2019 are discharged
- 3.The 3rd defendant's application dated 19th July, 2019 is overtaken by events in view of the orders above
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (suit by plaint); interlocutory applications under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kiarie Wakang’u (Suing as the legal representative of the estate of the late Wakang’u Tumuti) v Peter Kahura Gitere & 4 others [2020] KEELC 973 (KLR)", Case Analysis (2020). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/973/eng@2020-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.