[2004] KEHC 110 (KLR)
The court found that the applicants, as confirmed personal representatives of the deceased, had established a prima facie case for the grant of a temporary injunction. The evidence showed that the deceased had entered into a sale agreement for the suit property and had appointed the respondent to sell portions...
Source-derived case information.
- Citation
- [2004] KEHC 110 (KLR)
- Parties
- Applicant: Damaris Njoki Karioki; Applicant: Kennedy Muthanji Kimata; Respondent: Joseph Kamau Njenga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 417 of 2004
- Procedural Posture
- Civil Suit / Ruling on Amended Chamber Summons for Temporary Injunction
- Outcome
- application allowed
- Legal Topics
- Temporary Injunctions, Land Sale Agreements, Letters of Administration, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Njoki Karioki
Applicant
Kennedy Muthanji Kimata
Applicant
Joseph Kamau Njenga
Respondent
Procedural Posture
Civil Suit / Ruling on Amended Chamber Summons for Temporary Injunction
Legal Issues
- 1 Whether the applicants are entitled to a temporary injunction restraining the respondent from dealing with the suit property pending determination of the suit.
- 2 Whether the applicants have established a prima facie case for the grant of an injunction.
- 3 Whether the respondent's claims to the suit property are null and void for want of Land Control Board consent.
Ratio Decidendi
The court found that the applicants, as confirmed personal representatives of the deceased, had established a prima facie case for the grant of a temporary injunction. The evidence showed that the deceased had entered into a sale agreement for the suit property and had appointed the respondent to sell portions thereof, but later revoked that authority. The respondent failed to fulfill his obligations under a subsequent agreement and any purported sales or claims by him were void for want of Land Control Board consent. The applicants were therefore entitled to the injunctive relief sought, pending the hearing and determination of the main suit.
Court Disposition
application allowed
Orders
- Prayer 2 of the Amended Chamber Summons dated 11 May 2004 is granted: the respondent is restrained from entering into, remaining upon, selling or otherwise dealing with Land Reference Number 1556/238 or any portion thereof pending the hearing and determination of the suit.
- Costs of the application are awarded to the plaintiffs/applicants.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 417 of 2004
DAMARIS NJOKI KARIOKI
KENNEDY MUTHANJI KIMATA (suing as the Legal Representatives of
ERNEST KARIOKI MURAGE (DECEASED)) …… PLAINTIFF /APPLICANTS
-VERSUS-
JOSEPH KAMAU NJENGA.................................DEFENDANT/RESPONDENT
R U L I N G
In the Amended Chamber Summons application dated and filed on the 11th May 2004, expressed to have been brought under the provisions of order 39 rules 1, 2, 3 and 9 of the Civil Procedure Rules, the Plaintiffs/Applicants seek a temporary injunction restraining the Defendant/Respondent, inter alia, from entering into, remaining upon, selling or otherwise dealing with the suit property namely, Land Reference Number 1556/238 or any portion thereof pending the hearing and determination of the suit.
The application is based on the four grounds set out therein supported by the affidavit of the First Plaintiff/Applicant, Damaris Njoki Karioki also made on the 11th May 2004.
The application is opposed upon the grounds dated on the 18th May 2004 and filed on the 19th May 2004, the Replying Affidavits of the Defendant/Respondent, Joseph Kamau Njenga, made on the 18th May 2004 and the 4th June 2004 respectively.
It is not in dispute that the Applicants are the personal representatives of Ernest Karioki Murage (deceased), the Grant of Letters of Administration Intestate having been confirmed by this court on the 28th July 2004. It is also not in dispute that the deceased, though not the registered proprietor of the suit property, had prior to his death entered into an agreement for the sale of the same to him from one Elizabeth Nduta Njonjo and one Andrew Mungai and further that the deceased had appointed the Respondent to sell portions of the suit property on his behalf. The deceased having died before acquiring title to the suit property, the Applicants claim title thereto as his personal representatives.
In his submissions at the hearing of the application and as deponed to in the said supporting affidavit of the First Applicant, Mr. P, Kamau Njuguna, learned counsel for the Applicants, contended that the Respondent having failed to procure prospective purchasers of portions of the suit property pursuant to the deceased's written authority dated the 11th November 2000, the deceased by letter dated the 10th February 2001 revoked such authority.
Further, and as deponed to in paragraph 12 of the supporting affidavit, Mr. Njuguna contended that the Respondent had failed to fulfill his obligations under an agreement with the First Applicant dated the 11th December 2002 and continues in default. It was therefore urged on behalf of the Applicants that as the Respondent had not been able to perform under the terms of the said contract, and in the circumstances deponed to in the supporting affidavit aforesaid, the Applicants are entitled to the orders sought. In any event, and as the consent of the relevant Land Control Board under the provisions of the Land Control Act [Cap. 302| has not been obtained in relation to any of the claims purported to be made by the Respondent to the suit property or any portion thereof, any and all such claims must fail as they are null and void for all purposes under the Act as are any and all sales purported to have been made by the Respondent.
In reply, and relying on the grounds and the affidavits of the Respondent aforesaid, Mr, Gachiengo Gitau, learned counsel for the Respondent, contended that the Applicants' application must fail as no evidence whatsoever of the alleged purchase of the suit property by the deceased from Elizabeth Nduta Njonjo and Andrew Mungai had been adduced, Further, learned counsel contended that the suit property had not been clearly identified and further that the alleged sale to the deceased was in any event void for want of consent of the Land Control Board. Learned counsel contended further that the First Applicant in particular had meddled with the estate of the deceased in contravention of section 45 of the Law of Succession Act and could not in light thereof obtain the equitable remedies sought, Finally, and notwithstanding what is deposed to in paragraph 9 of the Replying Affidavit made on the 18th May 2004, the Respondent, through his learned counsel, disowned the documents annexed to and exhibited as ''DNK 4 and 5'' in the supporting affidavit.
I have considered the application in light of the submissions of both learned counsel. I am satisfied that on the material before me, the Applicants have shown that they have a prima facie case for the granting of the orders sought.
Accordingly, the Amended Chamber Summons application dated and filed on the 11 May 2004 is allowed and it is ordered that prayer 2 thereof be and is hereby granted and further that the costs of the application be and are hereby awarded to the Plaintiffs/Applicants.
Dated and delivered at Nairobi this 3rd day of December 2004.
P. Kihara Kariuki
Ag. Judge