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ELCAllowedEnvironment & Land Case E040 of 2022· [2023] KEELC 16103 (KLR)

Kiting'u v Makau & 2 others

Environment and Land Court
14 March 2023
1,863 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked relatives from interfering with registered land, ruling that grandchildren inherit only when the deceased's children are absent.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Machakos (Ochieng, J) on the plaintiff's notice of motion dated 31 May 2022 seeking a temporary injunction restraining the defendants from trespassing on, interfering with or damaging land parcel No. Donyo Sabuk/Komarock Block 1/96849 pending the hearing of the main suit. The plaintiff, registered proprietor of the suit land, deponed that he holds it in trust for himself and five named beneficiaries, and that after a meeting at Kantafu Chief's office convened by persons claiming to be grandsons of the late Kiting'u Mutua Kwiliwa, the defendants destroyed foliage on the land and threatened him. The defendants, describing themselves as grandsons and beneficiaries of the deceased's estate, denied trespass, alleged the plaintiff as administrator had irregularly sold estate land and apportioned himself a larger share, and noted they had lodged a caution over the mother title. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the plaintiff's Certificate of Title established a prima facie case; the defendants, not named in the title and lacking documentary proof of their interest, could not show entitlement, grandchildren being beneficiaries under the Law of Succession Act only where children are absent. Irreparable harm was demonstrated and not speculative (Nguruman), and the balance of convenience favoured the plaintiff. The court granted the injunction pending determination of the main suit, with costs in the cause, while observing that the defendants' succession grievances belong in the succession cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the Plaintiff produced a Certificate of Title showing he is registered proprietor holding in trust for named beneficiaries who are not the Defendants, who offered no documentary proof of their claimed beneficial interest

Reasoning

The Plaintiff annexed a Certificate of Title confirming registration as proprietor holding the suit land in trust for named beneficiaries. The Defendants claimed to be grandsons and beneficiaries of the Estate of Kiting'u Mutua Kwiliwa but were not listed in the Certificate of Title, provided no documentary proof of their entitlement, and did not indicate whose children they are. Under the Law of Succession Act, grandchildren inherit only where children are absent. The court therefore found a right apparently infringed, warranting an explanation or rebuttal.

02

Whether the Plaintiff would suffer irreparable harm not compensable by damages

Holding

Yes - the alleged injuries were demonstrated, not speculative, and the Defendants' claimed right would not justify interference with the land

Reasoning

Applying Nguruman Ltd v Jan Bonde Nielsen, the court held irreparable harm must not be speculative but actual, substantial and demonstrable. The Plaintiff demonstrated the harm he and the named beneficiaries would suffer if the injunction were denied, given the alleged trespass, burning of foliage and threats. Even if the Defendants had a right over the land, they should not interfere with it and have recourse to lodge a complaint against the Administrator within the succession cause.

03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the Plaintiff whose rights have been infringed upon by the Defendants

Reasoning

On the evidence presented by the parties, the court found the balance of convenience favoured the Plaintiff, whose rights as registered proprietor had been infringed by the Defendants' alleged interference with the suit land pending trial.

04

Whether the court has jurisdiction over the Defendants' succession-based claims

Holding

No - the Defendants' grievances about distribution of the estate should be canvassed in the succession cause, as this court lacks jurisdiction over them

Reasoning

The court observed that the Defendants' complaints about the Administrator's sale of estate property and unequal apportionment are succession issues that should have been raised in the court handling the succession cause. However, the immediate question before the court concerned interference with the suit land, which it could determine for purposes of the interlocutory application.

p. 3

Legal principles established

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  • A prima facie case is one in which, on the material presented, a tribunal properly directing itself concludes there exists a right apparently infringed so as to call for an explanation or rebuttal from the opposite party
  • Under the Law of Succession Act, direct beneficiaries of a deceased person are the children; grandchildren only become beneficiaries when the children are not there
  • Irreparable harm for purposes of an injunction must not be speculative; it must be actual, substantial and demonstrable and not adequately compensable by damages

Court orders

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  1. 1.Pending the hearing and determination of the main suit, the Defendants, either by themselves, agents, servants and/or assignees, are restrained from in any way trespassing, interfering and/or damaging any property on land parcel No. Donyo Sabuk/Komarock Block 1/96849
  2. 2.Costs of the Application to be in the cause

Authorities

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Legislation

  • Law of Succession ActNot specified (beneficiaries provisions)

Cases cited (8)

  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Another
    (2019) eKLR
  • Giella Vs Cassman Brown & Company Limited
    (1973) EA 358

    Principles for granting a temporary injunction: prima facie case, irreparable harm, balance of convenience

  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others
    (2016) eKLR
  • American Cyanamid Co. vs Ethicom Limited
    (1975) AER 504
  • Paul Njau Kimutia v Dickson Mbugua Njau
    (2011) eKLR
  • Priscar Bosibori Peter v Cecilia Nyangara Mokaya & Another
    (2013) eKLR
  • Mrao Ltd v First American Bank Limited
    (2003) K.L.R 125

    Definition of a prima facie case

  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012

    Irreparable harm must not be speculative; must be actual, substantial and demonstrable and not compensable by damages

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) context; not expressly cited in the ruling)

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, "Kiting'u v Makau & 2 others", Case Analysis (2023). Environment & Land Case E040 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16103/eng@2023-03-14

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