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ELCDismissedNot stated in the judgment (Notice of Motion dated 15th February 2022)· [2022] KEELC 2586 (KLR)

Wanyoike & another (Suing as the legal representatives of the Estate of Paul Gatete) v Gatete (Sued as the administrator of Estate of Ruth Wanjiku Gatete) (Environment & Land Case E007 of 2022) [2022] KEELC 2586 (KLR)

Environment and Land Court
21 July 2022
4,209 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family's bid to freeze disputed land, finding no proof the properties were held in trust for them.

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 Nakuru (L. A. Omollo, J) on the Plaintiffs'/Applicants' Notice of Motion dated 15th February 2022. The Applicant, an administrator ad litem of the estate of Paul Gatete Kiratu, sought a temporary injunction restraining the Defendant/Respondent from alienating eleven parcels of land registered in the name of the late Ruth Wanjiku Gatete, an order compelling the Respondent to deposit income from the properties into a joint account or in court, and a stay of proceedings in Nakuru High Court Succession Cause No. 43 of 2019 (Estate of Ruth Wanjiku Gatete). The Applicant alleged the properties were transferred to Ruth Wanjiku Gatete to hold in trust for the family. The Respondent, the Applicant's step-sister, countered that the properties were gifted outright to Ruth Wanjiku Gatete, that restrictions were already registered against the titles, and that the trust claim was unproven. The court framed four issues. Applying Giella v Cassman Brown and Nguruman, it found no prima facie case - the green cards disclosed no registered trust - no demonstration of irreparable injury, and no balance of convenience favouring the Applicant, especially given the existing restrictions. The court also held that the prayer for deposit of rental income amounted to taking accounts and collecting rents, outside the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, and declined to stay the succession cause since courts of equal status cannot stay each other's proceedings. The application was dismissed with costs to the Defendant/Respondent. The Plaintiff filed no submissions.

Key legal issues

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01

Whether a prima facie case was established for a temporary injunction

Holding

No prima facie case was established; the green cards showed no registration of trust and the applicants' assertion of a trust was unproven

Reasoning

The court examined the green cards which showed registration of the suit properties in the name of Paul Gatete Kiratu and transfer to Ruth Wanjiku Gatete, with restrictions lodged by the Respondent's advocates. Nothing on the register indicated that Ruth Wanjiku Gatete held the properties in trust for any group. Without proof of the asserted trust, no legal right apparently infringed was demonstrated.

p. 6
02

Whether irreparable injury and balance of convenience were demonstrated

Holding

Neither irreparable injury nor balance of convenience was demonstrated; the applicants did not file submissions or show what injury would befall them

Reasoning

Applying the Giella and Nguruman principles sequentially, the court noted the applicants offered no deposition or submissions on irreparable injury. The existence of restrictions already registered against the properties and the referral of the parties by the succession court to the ELC meant no risk of the properties being wasted or alienated pending trial.

p. 6
03

Whether the ELC can compel deposit of rental income from the suit properties

Holding

The prayer was declined as it falls outside the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act

Reasoning

Relying on Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that the ELC's jurisdiction over land use does not extend to mortgages, charges, collection of dues and rents. A prayer to deposit income from properties is akin to taking accounts and collecting rents, a matter for the civil jurisdiction of the High Court.

p. 8
04

Whether the ELC can stay proceedings in the High Court succession cause

Holding

The stay was declined; courts of equal status cannot stay each other's proceedings, and stay in succession causes should be granted sparingly

Reasoning

Citing Estate of Gerald Mwangi Mugo and Halsbury's Laws, the court observed that stay of proceedings is a grave interruption to be exercised sparingly. Rule 41(3) of the Probate and Administration Rules provides a mechanism for setting aside disputed property pending determination. The proper forum for a stay application is the court where the proceedings are ongoing.

p. 9

Legal principles established

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  • A court of equal status cannot stay proceedings before another court of the same status; a stay application must be made in the court where the proceedings are ongoing
  • The ELC's jurisdiction over land use disputes does not extend to taking accounts, collection of dues and rents

Court orders

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  1. 1.The Notice of Motion application dated 15th February 2022 is dismissed
  2. 2.Costs of the application awarded to the Defendant/Respondent

Authorities

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Legislation

  • Evidence ActSection 107
  • Law of Succession ActSection 3
  • Land Registration ActSections 24 and 26
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSection 27
  • Probate and Administration RulesRule 41(3)
  • Halsbury's Laws of England, 4th Edition, Vol. 37pages 330 and 332

Cases cited (13)

  • Patrick Mathenge Gachui v Karumi Wambugu & Another
    [2010] eKLR
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Ali Kitsao Katana v Kassim Mohammed Omar & 5 Others
    [2018] eKLR
  • Giella v Cassman Brown & Co. Limited
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others
    [2016] eKLR
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Another
    [2019] eKLR
  • Co-operative Bank of Kenya Ltd and Patrick Kangethe Njuguna and five Others
    [2017] eKLR
  • Estate of Gerald Mwangi Mugo (Deceased)
    [2019] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Article 162(2)(b) of the Constitution read together with Section 13 of the Environment and Land Court 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, "Wanyoike & another (Suing as the legal representatives of the Estate of Paul Gatete) v Gatete (Sued as the administrator of Estate of Ruth Wanjiku Gatete) (Environment & Land Case E007 of 2022) [2022] KEELC 2586 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 15th February 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2586/eng@2022-07-21

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