[2013] KEHC 1207 (KLR)
The court found that the applicants had established a prima facie case with a probability of success, as their claim to a share of the estate proceeds was not rebutted or denied by the respondents. The court held that there was a real risk of irreparable loss to the applicants if the funds were distributed before...
Source-derived case information.
- Citation
- [2013] KEHC 1207 (KLR)
- Parties
- Plaintiff: Ben Njoroge Muchunu; Plaintiff: Simon Kimani Muchunu; Plaintiff: Steve Ndungu Muchunu; Defendant: Phares Muchunu; Applicant: Margaret Wangare Mburu (on her own and as the next friend of Harun Mburu); Applicant: Peninah Wangui
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 266 of 2011
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application for temporary injunction allowed.
- Judges
- MJA Emukule
- Legal Topics
- Injunctions, Estate Distribution, Interlocutory Relief, Succession, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ben Njoroge Muchunu
Plaintiff
Simon Kimani Muchunu
Plaintiff
Steve Ndungu Muchunu
Plaintiff
Phares Muchunu
Defendant
Margaret Wangare Mburu (on her own and as the next friend of Harun Mburu)
Applicant
Peninah Wangui
Applicant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants have established a prima facie case to warrant a temporary injunction restraining distribution of the estate proceeds.
- 2 Whether the applicants would suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience favours granting the injunction.
Ratio Decidendi
The court found that the applicants had established a prima facie case with a probability of success, as their claim to a share of the estate proceeds was not rebutted or denied by the respondents. The court held that there was a real risk of irreparable loss to the applicants if the funds were distributed before their claim was determined, as there was no assurance that the Plaintiffs or Defendant would compensate them. Applying the principles in Giella v Cassman Brown, the court concluded that the balance of convenience favoured preserving the status quo by restraining distribution of the Ksh 5 million until the applicants' claim could be fully heard and determined.
Court Disposition
Application for temporary injunction allowed.
Orders
- Temporary injunction granted restraining the Plaintiffs and Defendant from distributing the sum of Ksh 5 million, being proceeds of the estate property, pending determination of the applicants' claim.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NO. 266 OF 2011
BEN NJOROGE MUCHUNU..............................................................1ST PLAINTIFF
SIMON KIMANI MUCHUNU.............................................................2ND PLAINTIFF
STEVE NDUNGU MUCHUNU...........................................................3RD PLAINTIFF
VERSUS
PHARES MUCHUNU...........................................................................DEFENDANT
AND
MARGARET WANGARE MBURU (on her own and as the next friend of
HARUN MBURU)...........................................1ST INTERESTED PARTY/APPLICANT
PENINAH WANGUI......................................2ND INTERESTED PARTY/APPLICANT
RULING
In their application dated 15. 02. 2013 the Interested Parties (Applicants) sought an order of temporary injunction to restrain both the Plaintiffs and Defendants (who are respondents in the application) from distributing a sum of Ksh 5 million, the proceeds of sale of an estate property of the late Benjamin Njoroge Wamanja who is said to have died in the year 1993. The said sum of money is held in a deposit account in the names of the Plaintiffs' and Defendants' Affidavit.
Under the principles set out in the case of GIELLAVS. CASSMAN BROWN & CO. LTD [1973] E.A. 445, an Applicant for an order of injunction should show that -
(a) he has a prima facie case with a probability of success,
(b) unless the order of injunction is granted, he will suffer substantial loss which he will not be compensated in damages,
(c) in the event of doubt on the first two principles, then the court will determine the application on the balance of convenience.
From the pleadings, it is shown that the estate property in issue was sold for shs 11 million. It is also shown in the Applicant's Supporting Affidavit that a sum of sh 6 million has already been distributed, some of the estate's beneficiaries. A sum of Ksh 5 million is said to be in a deposit account with the Plaintiffs' and Defendant's Advocates as already stated above.
There are merely grounds of opposition to the Interested Parties' application. There is no affidavit to rebut the Interested Parties' claim that they too are entitled to an equal amount of the proceeds of sale of the estate property of the late Benjamin Njoroge Wamanja. It is not at this stage necessary to examine the validity of that claim. It suffices to observe that there is no objection or denial to the basis of the Applicant's claim, the deceased was their grandfather; and that they too are entitled to part of his estate. The basis of such interest would be a matter of full argument and evidence.
In the circumstances I am satisfied that the applicants have established a prima facie case with a probability of success and that there is every likelihood that if the temporary injunction is denied, the Interested Parties are likely to suffer loss and damage which neither the Plaintiffs nor the Defendant would be keen to compensate either of them.
For those reasons, I would allow the Chamber Summons dated 15. 02. 2013 in terms of prayer iv thereof. The costs herein shall be in the cause.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 7th day of November, 2013
M. J. ANYARA EMUKULE
JUDGE