[2014] KEHC 6487 (KLR)
The court found that the applicant was allocated 55 acres from her late father-in-law's estate, to be held jointly with the first respondent for the benefit of her children. The first and second respondents, as administrators, had no authority to sell one acre of this land without the applicant's consent, especially...
Source-derived case information.
- Citation
- [2014] KEHC 6487 (KLR)
- Parties
- Plaintiff: Benedette Nafula Wanyonyi; Defendant: Donald Kibunguchi Kisaka; Defendant: Patrick Sitati Kisaka; Defendant: Edwin Wekesa Nasong'o
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 35 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- injunction granted in favour of the applicant; costs to the applicant
- Legal Topics
- Injunctive Relief, Administration of Estates, Beneficial Interest, Sale of Land Without Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benedette Nafula Wanyonyi
Plaintiff
Donald Kibunguchi Kisaka
Defendant
Patrick Sitati Kisaka
Defendant
Edwin Wekesa Nasong'o
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to an injunction restraining the respondents from interfering with one acre of land forming part of her late husband's share.
- 2 Whether the first and second respondents had authority to sell one acre of the applicant's allocated land without her consent.
- 3 Whether the applicant has established a prima facie case with a probability of success.
Ratio Decidendi
The court found that the applicant was allocated 55 acres from her late father-in-law's estate, to be held jointly with the first respondent for the benefit of her children. The first and second respondents, as administrators, had no authority to sell one acre of this land without the applicant's consent, especially as the land had already been distributed and allocated to her. The sale to the third respondent was therefore unauthorized. The applicant established a prima facie case with a probability of success, justifying the grant of an injunction to restrain the respondents from interfering with the disputed one acre. The respondents' failure to respond to the application further...
Court Disposition
injunction granted in favour of the applicant; costs to the applicant
Orders
- An injunction is granted restraining the respondents from interfering with one acre forming part of the applicant's 55 acres as per prayer (2) of the notice of motion dated 20th February, 2014.
- The respondents shall pay the costs of this application to the applicant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
ELC CASE NO. 35 OF 2014
BENEDETTE NAFULA WANYONY.................................PLAINTIFF
VERSUS
DONALD KIBUNGUCHI KISAKA
PATRICK SITATI KISAKA
EDWIN WEKESA NASONG'O….............................DEFENDANTS
R U L I N G
The applicant brought a notice of motion dated 20th February, 2014 against the respondents in which she seeks an injunction against the respondents restraining them from interfering with one acre forming part of 55 acres being her husband's share from her late father-in-law.
The applicant is widow of Wycliffe Wanyonyi Kisaka who was son of the late William K. Kibunguchi. The husband of the applicant died before his father 's estate would be distributed.
The first respondent is a brother in-law of the applicant and the second respondent is son of the first respondent. The two are administrators of the estate of the late William K. Kibunguchi.
During the distribution of the estate of the late William K. Kibunguchi, the applicant was given 55 acres which were to be held jointly with her and the first respondent for the benefit of the applicant's children.
On 19/7/2013, the first and second respondents sold one acre of her share to the 3rd respondent who has gone ahead to curve one acre from the middle of the 55 acres and has started fencing the land and is in the process of uprooting mature coffee plants growing on the said land.
The applicant contends that the one acre was sold without her consent, this being her family land and that the first and the second respondents had no authority to do so.
The applicant contends that the 3rd respondents has been violent towards her and her servants and has threatened to harm her should she go on with her intentions to stop him from going on with the fencing. This is the basis upon which she has come to court seeking orders of injunction.
All the respondents were duly served with the motion herein and summons to enter appearance but they neither entered appearance nor filed any replying affidavit or grounds of opposition to the application.
I have considered the applicant's application as well as annextures thereto. It is clear that the applicant was given 55 acres from the estate of her late father-in-law being her late husband's share.The 55 acres are to be jointly held by the applicant and the first respondent for the benefit of the applicant's children. The first respondent has his own land being his share from his father's estate.
The applicant has annexed a copy of a sale agreement dated 19th July, 2013 (Annexture B N W 2). In this agreement, the the vendors are shown as the first and second respondents as administrators of the husband of the applicant.The applicant contends that her deceased husband died before distribution of the estate of his father. From the amended certificate of confirmation of grant, it is shown that the amendment was done on 7th April, 2011. The sale took place two years later.
The 55 acres was given directly to the applicant as her husband had died before distribution of his father's estate. The first and second respondents could not therefore purport to sell the one acre in their capacity as administrators of the applicant's husband.
The applicant has demonstrated that she has a prima facie case with a probability of success. She is entitled to the injunction sought. I therefore grant an injunction in terms of prayer (2) of the notice of motion dated 20th February, 2014. The respondents shall pay the costs of this application to the applicant.
It is so Ordered
Dated, signed and delivered at Kitale on this 5th day of March, 2014.
E. OBAGA,
JUDGE
In the presence of Mr Chebii for applicant. Court Clerk – Kassachoon.
E. OBAGA,
JUDGE
5/3/2014