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] eKLR Case Summary

Court
Environment and Land Court at Nairobi
Category
Civil
Judge(s)
S. Okong’o
Judgment Date
October 01, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Peter Kiarie Wakang’u v Peter Kahura Gitere & 4 others [2020] eKLR, detailing critical legal outcomes in estate representation and liability issues.

Case Brief: 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] eKLR

1. Case Information:
- Name of the Case: Peter Kiarie Wakang’u (Suing as the legal representative of the estate of the late Wakang’u Tumuti) v. Peter Kahura Gitere, Kenneth Kimari Gitere, David Gitere Wakang’u, Gitere Kahura Investments Limited, and Sawa Energy Limited
- Case Number: ELC Suit No. 25 of 2019
- Court: Environment and Land Court at Nairobi
- Date Delivered: 1st October 2020
- Category of Law: Civil
- Judge(s): S. Okong’o
- Country: Kenya

2. Questions Presented:
- Whether the plaintiff has established a prima facie case against the defendants to warrant the issuance of a temporary injunction restraining them from interfering with the suit property.
- Whether the 3rd defendant is entitled to continue construction on L.R No. 5980/67 and if the previous court orders should be varied or set aside.

3. Facts of the Case:
- The plaintiff, Peter Kiarie Wakang’u, represents the estate of the late Wakang’u Tumuti, who was claimed to be a beneficial owner of 30 acres of a 60-acre parcel of land (L.R No. 5980) purchased in 1978, alongside his brother-in-law, Peter Kahura Gitere. The land was acquired through Gitere Kahura Investments Limited.
- The plaintiff alleges that the defendants, who are the legal representatives of Kahura’s estate and the company, unlawfully encroached upon the deceased’s portion of the land, clearing coffee plantations and denying access to the plaintiff.
- The plaintiff sought a temporary injunction to prevent further interference with the property, claiming that the defendants' actions were malicious and intended to undermine his rights.

4. Procedural History:
- The plaintiff filed a plaint and a Notice of Motion application on 4th February 2019. The court granted interim orders on 14th February and extended them on 14th March 2019, restraining the defendants from interfering with the property.
- The defendants opposed the application, arguing that the plaintiff lacked standing and that the suit was time-barred. The 3rd defendant later sought to join the case, claiming it had a legal lease for part of the property and sought to continue construction.
- The court directed that the applications be heard together, and submissions were made by all parties.

5. Analysis:
- Rules: The court applied principles from *Giella v. Cassman Brown & Co. Ltd.* [1973] E.A 358, which requires an applicant for an injunction to show a prima facie case with a probability of success and demonstrate irreparable harm.
- Case Law: The court referenced *Nguruman Limited v. Jan Bonde Nielsen & 2 Others* [2014] eKLR and *Mrao Limited v. First American Bank of Kenya Limited & 2 Others* [2003] KLR 125, emphasizing that the applicant must show a clear right that is threatened.
- Application: The court found that the plaintiff failed to establish a prima facie case. The evidence presented did not sufficiently connect the deceased to the suit property, nor did it demonstrate possession or any ownership interest. The defendants were deemed the lawful owners of the property.

6. Conclusion:
- The court dismissed the plaintiff’s application for a temporary injunction, asserting that he did not demonstrate a prima facie case. Consequently, the interim orders were discharged, and the 3rd defendant’s application became moot.

7. Dissent:
- There were no dissenting opinions noted in the ruling.

8. Summary:
- The court ruled against the plaintiff, dismissing his application for an injunction and discharging prior orders that restricted the defendants' activities on the property. This case underscores the importance of establishing a clear legal interest in property disputes and the need for substantive evidence when claiming ownership or rights to land. The implications highlight the challenges faced by legal representatives in asserting claims on behalf of deceased individuals without adequate documentation or proof of ownership.

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