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ELCPartially AllowedNot stated in the judgment (Plaint dated 4/06/2024)· [2025] KEELC 3557 (KLR)

Gitere & another (Suing as Administrators of the Estate of Gitere Kahura) v Gitere & another (Civil Case E223 of 2024) [2025] KEELC 3557 (KLR)

Environment and Land Court
6 May 2025
7,024 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked a Kshs 64 million land sale, ruling that disputes over land sold from a deceased person's estate belong in the land court, not the succession court.

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 Thika (Mogeni J) on the Plaintiffs' Notice of Motion dated 4/06/2024 seeking temporary injunctions restraining the 1st Defendant from dealing with suit property LR 209/2763/18 and restraining the 2nd Defendant from releasing the purchase price of Kshs. 64,000,000, together with the 1st Defendant's Notice of Preliminary Objection dated 22/07/2024. The Plaintiffs, administrators of the estate of the late Gitere Kahura, allege that the 1st Defendant fraudulently extended the lease to himself and sold the property to the 2nd Defendant for Kshs. 64 million, and sought to impeach the 2nd Defendant's title under Section 26 of the Land Registration Act. The 1st Defendant objected that the dispute is a succession matter outside the ELC's jurisdiction under Article 162(2)(b), that the plaintiffs lack locus standi since the property is not in the confirmed grant, and that the claim is time-barred. The court held that it has jurisdiction: the dispute concerns title to land and the bona fide purchaser defence, and third-party disputes over a deceased's property need not be determined in the probate court. The sub judice and limitation objections also failed. On the application, applying Giella v Cassman Brown, the court found a prima facie case, a likelihood of irreparable harm from ongoing demolition and evictions, and that the balance of convenience favours the status quo. The application was allowed in terms of prayers 5, 6 and 7 and the preliminary objection dismissed, with costs of both to be in the cause.

Key legal issues

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01

Whether the Environment and Land Court, rather than the succession court, has jurisdiction over a dispute concerning land allegedly fraudulently taken from a deceased's estate and sold to a third party

Holding

The ELC is vested with jurisdiction because the dispute is essentially about ownership and title to land, involving the bona fide purchaser defence; succession matters between the estate and third parties fall to be determined under the Civil Procedure Act.

Reasoning

The court applied Article 162(2)(b) and Section 13(2) of the Environment and Land Court Act, which confer power over disputes relating to title to land. Relying on In Re Estate of Alice Mumbua Mutua, it noted that the probate court's mandate is limited to identifying estate assets, survivors and beneficiaries, and that disputes between an estate and third parties must be resolved in a civil court. The plaintiffs were not claiming as beneficiaries but seeking to impeach the 2nd Defendant's title under Section 26 of the Land Registration Act.

p. 9
02

Whether the suit is sub judice given the pending Succession Cause No. 265 of 2009

Holding

The sub judice objection fails because it was not pleaded in the defence and the pleadings in the succession cause were not placed before the court; moreover, the 2nd Defendant is not a party to the succession cause and the suit property is not mentioned in the ruling of 30/01/2024.

Reasoning

Section 6 of the Civil Procedure Act requires the same parties litigating under the same title over the same subject matter. The court found the objection improperly invoked: the sub judice issue was not pleaded, the succession pleadings were not exhibited, and a scrutiny of Justice E.K Ogola's order of 30/01/2024 showed that neither the 2nd Defendant nor the suit property featured in it.

p. 10
03

Whether the plaintiffs' claim is time-barred under the Limitation of Actions Act

Holding

The court could not find the plaintiffs time-barred, since the property was sold in 2022 and there was no evidence the alleged fraud was discovered earlier than the plaintiffs claimed.

Reasoning

The 1st Defendant anchored the limitation plea on the 2003/2004 extinguishment of the lease. The court instead observed that the suit, filed in 2024, followed the 2022 sale to the 2nd Defendant, and in the absence of evidence of earlier discovery of the fraud, limitation could not be determined as a preliminary point on contested facts.

p. 10
04

Whether the plaintiffs established a prima facie case, irreparable harm and balance of convenience for a temporary injunction

Holding

All three Giella limbs were satisfied: documents showing the deceased's extension approval were unrebutted, demolition and eviction threatened irreparable harm, and the balance of convenience favours maintaining the status quo.

Reasoning

The 1st Defendant produced no documents supporting his claim of allocation of the property by his late father in 2007 or the extension approval of 18/04/2019. The plaintiffs' documents showing the deceased's approved but uncompleted extension were unrebutted. Photographs showed demolition underway, threatening the plaintiffs' rights. The court held that waving a title under challenge is insufficient and that the balance of convenience favours maintaining the status quo.

p. 12

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be founded on disputed facts or the exercise of judicial discretion
  • Jurisdiction is foundational; where a court lacks it, it must down its tools
  • Not every dispute over property of a dead person must be determined by the probate court; disputes between an estate and third parties are resolved under the Civil Procedure Act and Rules
  • An Environment and Land Court has jurisdiction over a claim to impeach a title to land even where the property originated in a deceased's estate

Court orders

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  1. 1.Allowance of the Plaintiffs'/Applicants' Notice of Motion dated 4/06/2024 (referred to in the order as dated 14/06/2024) in terms of prayers No. 5, 6 and 7, being temporary injunctions restraining the 1st and 2nd Defendants from dealing with the suit property and restraining payment of the Kshs. 64,000,000 purchase price
  2. 2.Dismissal of the 1st Defendant's Notice of Preliminary Objection dated 22/07/2024
  3. 3.Costs of both the Application and the Preliminary Objection to be in the cause
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) 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, "Gitere & another (Suing as Administrators of the Estate of Gitere Kahura) v Gitere & another (Civil Case E223 of 2024) [2025] KEELC 3557 (KLR)", Case Analysis (2025). Not stated in the judgment (Plaint dated 4/06/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3557/eng@2025-05-06

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