[2017] KEELC 895 (KLR)
The court found that there were serious contested facts regarding the alleged consent to the transfer of the suit property and the applicants' entitlement to a share of their late father's property. Given these disputes, the court held that the appropriate order was to maintain the status quo to preserve the subject...
Source-derived case information.
- Citation
- [2017] KEELC 895 (KLR)
- Parties
- Plaintiff: Beth Njambi; Plaintiff: Tabitha Waithera; Plaintiff: Jacinta Wambui; Defendant: Daniel Ng’ang’a Mugo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1611 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Status quo order granted; restriction to be registered; file transferred to Murang’a ELC.
- Legal Topics
- Injunctions, Land Registration, Succession Disputes, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beth Njambi
Plaintiff
Tabitha Waithera
Plaintiff
Jacinta Wambui
Plaintiff
Daniel Ng’ang’a Mugo
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicants have established a prima facie case to warrant the grant of an interlocutory injunction restraining the respondent from dealing with the suit property.
- 2 Whether the applicants consented to the transfer of the suit property to the respondent.
- 3 Whether the status quo should be maintained pending the hearing and determination of the suit.
Ratio Decidendi
The court found that there were serious contested facts regarding the alleged consent to the transfer of the suit property and the applicants' entitlement to a share of their late father's property. Given these disputes, the court held that the appropriate order was to maintain the status quo to preserve the subject matter of the suit. The respondent was allowed to continue utilising the land for subsistence, but any transfer or further dealings with the property were prohibited. The Land Registrar was directed to register a restriction inhibiting any dealings on the suit property until the suit is heard and determined. The court also ordered the transfer of the file to the Murang’a...
Court Disposition
Status quo order granted; restriction to be registered; file transferred to Murang’a ELC.
Orders
- Status quo to be maintained; respondent to continue utilising the land for subsistence only.
- No transfer or dealings with the suit property pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA
AT MILIMANI
ELC CASE NO. 1611 OF 2016
BETH NJAMBI …………………………………………………….1ST PLAINTIFF
TABITHA WAITHERA…………………………………………….2ND PLAINTIFF
JACINTA WAMBUI………………………………………………..3RD PLAINTIFF
=VERSUS=
DANIEL NG’ANG’A MUGO………...……………………………….DEFENDANT
RULING
1. The Plaintiff/Applicants are daughters of the late Gathokore Mugo (deceased). The Defendant/Respondent is the adopted son of the deceased. The first applicant is the sole admnistratrix of the estate of the deceased. During the distribution of the estate of the deceased, it was agreed that the first applicant and the respondent were to be registered as joint tenants in common of LR NO.LOC.3/Mukuria/150 (suit property). On 18th August 2004, the suit property was jointly registered in the name of the first applicant and the respondent and a title deed given accordingly.
2. The applicants filed a Notice of Notion dated 16th December 2016 seeking an injunction to restrain the respondent or his servants or agents from dealing with the suit property in any manner. The applicants also sought an order directing the Land Registrar Muraga County to register a restriction barring any dealings on the suit property.
3. The applicants contend that the respondent fraudulently had the suit property registered in his sole name and that he is now in the process of sub-dividing it and selling it on the ground that women are not supposed to have a share of their father’s property.
4. The respondent has opposed the applicant’s application based on a replying affidavit sworn on 5th May 2017. The respondent contends that the suit property is now registered in his name pursuant to a transfer which was obtained with the consent of all the applicants.
5. I have considered the applicants application as well as the opposition thereto by the respondent. I have also considered the submissions by the parties herein. This is an application for injunction. In such an application, the applicants are expected to demonstrate that they have a prima facie case with probability of success.
6. I have looked at the documents annexed to the applicant’s application as well as the ones which are annexed to the respondent’s replying affidavit. The applicants state that they are all illiterate and that they do not know English. The respondent has annexed documents in which the three applicants are alleged to have agreed that the suit property be transferred to the respondent as a gift. There is also another document annexed to the respondent’s affidavit showing that the first applicant appeared before the Land Control Board and consent to transfer was granted. The applicants deny that this was not the case.
7. There are contested facts which can only be determined at the trial of this suit. The Respondent claims that the applicants are all married and that they do not have houses on the suit property. This may be so but that does not prevent them from claiming a share of their father’s property. The purpose of an injunction is to preserve a property in dispute until a dispute is resolved. It cannot be granted where it is clear that its effect will disentitle one party from the rights he has been enjoying or will lead to his eviction. A letter dated 3rd October 1994 written by the District Commissioner Murang’a shows that all the applicants were all married and their ages ranged between 84 years ,60 years and 51 years respectively.
In view of the serious conflicts of facts in this case the best order to be given is an order of maintenance of status quo. The respondent should continue utilising the land for subsistence but there should be no transfer of any portion of the suit land. The Land Registrar Murang’a County is hereby directed to register a restriction inhibiting any dealings on the suit property until this suit is heard and determined. Costs of this application shall be costs in the cause. An order is given transferring this file to Murang’a Environment and Land Court where the suit property is situate.
It is so ordered.
Dated, Signed and delivered at Nairobion this 13thday of November 2017.
E.O.OBAGA
JUDGE
In the absence of the parties who were away of the date and time for delivery of Ruling.
Court Assistant: Hilda
E.O.OBAGA
JUDGE