[2006] KEHC 3576 (KLR)
The court found that the applicant had established a prima facie case for the grant of a temporary injunction. The evidence showed that the 1st, 2nd, and 3rd defendants attempted to sell and transfer the suit property, which forms part of the deceased's estate, to the 4th defendant without the knowledge or consent...
Source-derived case information.
- Citation
- [2006] KEHC 3576 (KLR)
- Parties
- Plaintiff: Charles Ndungu Njono; Defendant: Haron Njono Ngure; Defendant: Gitau Njono; Defendant: Mwangi Njono; Defendant: Beatrice Mumbua Nene
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 331 of 2006
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction
- Outcome
- Interlocutory injunction confirmed; ex parte orders to remain in force until determination of the suit.
- Legal Topics
- Injunctive Relief, Estate Administration, Beneficiary Rights, Sale of Land, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ndungu Njono
Plaintiff
Haron Njono Ngure
Defendant
Gitau Njono
Defendant
Mwangi Njono
Defendant
Beatrice Mumbua Nene
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from selling or transferring the suit property pending determination of the suit.
- 2 Whether the sale of the suit property by the 1st, 2nd, and 3rd defendants to the 4th defendant was lawful and with the knowledge of all beneficiaries.
- 3 Whether the plaintiff and other beneficiaries are entitled to an account and fair share of the sale proceeds.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of a temporary injunction. The evidence showed that the 1st, 2nd, and 3rd defendants attempted to sell and transfer the suit property, which forms part of the deceased's estate, to the 4th defendant without the knowledge or consent of all beneficiaries, including the applicant. The respondents conceded that the property is part of the estate and that all parties are entitled to equal shares. The court held that unless restrained, the transfer could result in irreparable harm to the applicant and other beneficiaries. Consequently, the ex parte interim injunction previously granted was confirmed to preserve...
Court Disposition
Interlocutory injunction confirmed; ex parte orders to remain in force until determination of the suit.
Orders
- The ex parte interim injunction granted on 3rd April 2006 is confirmed and shall continue in force until the suit is heard and determined.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Civil Case 331 of 2006
CHARLES NDUNGU NJONO………………………....…………………...PLAINTIFF
VERSUS
HARON NJONO NGURE………………………...………………..1ST DEFENDANT
GITAU NJONO………………………………….….……………….2ND DEFENDANT
MWANGI NJONO…………………………….…….………………3RD DEFENDANT
BEATRICE MUMBUA NENE….………………….………………4TH DEFENDANT
RULING
By plaint dated 3rd April 2006 the plaintiff brought this claim against the defendant seeking judgment for:
a) A permanent injunction restraining the 1st, 2nd and 3rd defendants, their agents or servants from selling or transferring the suit property being LT NO. BLOCK S 70 KARIOBANGI SOUTH PHASE IV to the 4th defendant or in any other manner dealing or interfering with the suit property.
b) A declaration that the purported sale of the suit property by the 1st, 2nd and 3rd defendants to the 4th defendant is unlawful and null and void abinitio.
c) In the alternative an order directing the 1st, 2nd and 3rd defendants to account to and give the plaintiff and other beneficiaries of the deceased’s estate their fair share of the sale proceeds of the suit property.
d) Costs of the suit.
e) Any other or further relief that this Honourable Court may deem fit to grant in the circumstances of this suit.
Simultaneously with the plaint the plaintiff brought this Chamber Summons under certificate of urgency seeking a temporary injunction to restrain the defendants either by themselves or through their agents or servants from selling, transferring to the 4th defendant or in any other manner dealing or interfering with the suit property pending the hearing and determination of this suit.
The application is based on the ground: that the applicant and the 2nd respondent are co-administrators of the estate of the late NJONO KIGIRI KAGUNDA, that the 1stt, 2nd and 3rd Defendants have entered into Sale Agreement with the 4th defendant purporting to sell the suit property to the 4th defendant secretly and without the knowledge of the plaintiff; that the 1st, 2nd and 3rd defendants have also purported to agree on the mode of sharing of the proceeds of the sale among themselves to the execution of the applicant and beneficiaries of the estate and that the 1st, 2nd and 3rd defendants are in the process of transferring the suit property to the 4th defendant and might do so in which event the applicant and other beneficiaries of the deceased’s estate will suffer immense loss and damage unless the respondents are restrained by an order of this court. The application is also supported by an affidavit sworn by the applicant.
The applicant on 3rd April 2006 obtained ex parte interim injunction and served the respondents who filed replying affidavit in which they concede that the suit property forms part of their late fathers estate and they are all each entitled to equal share. But when the application came up for hearing interpartes they did not appear despite the fact that they were served and there is return of service on record. The applicant applied that the ex parte interim orders obtained on 3rd April 2006 be confirmed.
The applicant’s application is granted and the ex parte injunction granted on 3rd April 2006 is hereby confirmed and to continue in force until this suit is heard and determined.
Dated and delivered at Nairobi this 31st day of October, 2006.
J.L.A. OSIEMO
JUDGE