[2004] KEHC 2537 (KLR)
The court found that the plaintiffs had demonstrated a prima facie case with a likelihood of success, as the transfer and subdivision of the suit property by the first defendant occurred without any grant of Letters of Administration or Probate in respect of the deceased's estate. The plaintiffs also showed that...
Source-derived case information.
- Citation
- [2004] KEHC 2537 (KLR)
- Parties
- Applicant: Frasia Wanjiru Maina & 3 Others; Defendant: Esther Wachuka Njoroge & 11 Others
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 32 of 2004
- Procedural Posture
- Civil Suit / Interlocutory Application for Injunction
- Outcome
- Plaintiffs' application for interim injunction granted with costs.
- Legal Topics
- Injunctions, Fraud in Land Transactions, Probate and Administration, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frasia Wanjiru Maina & 3 Others
Applicant
Esther Wachuka Njoroge & 11 Others
Defendant
Procedural Posture
Civil Suit / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case to warrant the grant of an interim injunction restraining the defendants from dealing with the subject land titles.
- 2 Whether there is a risk of irreparable harm to the plaintiffs if the injunction is not granted.
- 3 Whether the transfer and subdivision of the suit property by the first defendant constituted fraud or illegality in the absence of a grant of Letters of Administration or Probate.
Ratio Decidendi
The court found that the plaintiffs had demonstrated a prima facie case with a likelihood of success, as the transfer and subdivision of the suit property by the first defendant occurred without any grant of Letters of Administration or Probate in respect of the deceased's estate. The plaintiffs also showed that they stood to suffer irreparable loss if the subject titles were alienated or charged to third parties before the determination of the suit. The absence of opposition from the defendants further supported the plaintiffs' case. Accordingly, the court granted the interim injunction and prohibitory orders sought by the plaintiffs to preserve the subject property pending the hearing...
Court Disposition
Plaintiffs' application for interim injunction granted with costs.
Orders
- Interim injunction restraining the defendants from alienating, charging, or otherwise dealing with Title Numbers LAIKIPIA/MARMANET/2222 to 2236 inclusive pending the hearing and determination of the suit.
- Prohibitory order directed to the Laikipia District Lands Registrar restraining any transactions affecting the subject titles pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Suit 32 of 2004
FRASIA WANJIRU MAINA & 3 OTHERS………......……….….……APPLICANTS
VERSUS
ESTHER WACHUKA NJOROGE & 11 OTHERS…………….….DEFENDANTS
RULING
The applicants applied for interim orders of injunction to restrain the defendants jointly and severally, whether by themselves, their employees, servants or agents from alienating, charging or in any other manner dealing in Title Numbers LAIKIPIA/MARMANET/2222 to 2236 both numbers inclusive, hereinafter referred to as the “subject titles” pending the hearing and determination of this suit. They also applied for a prohibitory order restricting and/or restraining any transactions that would affect the subject titles directed to the Laikipia District Lands Registrar pending the hearing and determination of this suit. The application was supported by the affidavit of Peterson Maina Kimiti sworn on 30th February, 2004.
The application was made on the grounds that the mother title was allegedly acquired by the first Defendant herein on suspicious circumstances as would constitute fraud and/or illegality given that no petition for a grant of Letters of Administration or Probate had even been filed by the plaintiffs or the defendants or at all in respect of the estate of WAMAHIGA NJOROGE MUTITU (Deceased) who was the lawful allottee by the Settlement Fund Trustees of Plot No. 373 MARMANET SETTLEMENT SCHEME.
It was also stated that the defendants who were in possession of the subject titles had either orally advertised their respective parcels for sale and/or charge to commercial Banks with a view to denying the plaintiffs as well as other beneficiaries of the estate of the deceased rights to the suit premises and/or defeating the ends of justice.
In the said affidavit, it was deponed by Mr. Peterson Maina Kimiti that on 6th June, 1996 he entered into an agreement for sale of four (4) Acres to be excised from the suit premises at a consideration of Kshs.320,000/- with the deceased but the deceased succumbed to death before she had performed her part of the agreement. Recently the plaintiffs realised that the Settlement Fund Trustee had transferred the land to the first Defendant and a Title Deed had been issued in the first defendant’s name who had then sub-divided the property into 15 sub plots and obtained separate title deeds in respect of each sub-division. The plaintiffs sensed fraud and decided to involve the local District Administration, the Director of Land Adjudication and Settlement as well as their advocates in investigating the matter but while that was being done, the first Defendant was busy transferring one of the sub divisions, LAIKIPIA/MARMANET/2231 to Mary Wangui Ndaruku. The plaintiffs therefore feared that they may be disinherited of their rights by the defendants hence this application. The 1st, 2nd and 3rd plaintiffs stated that the deceased in her oral will had bequeathed various portions of the suit premises to them.
The defendants were served with the court process but only the first Defendant entered appearance but she did not oppose the application. All the other defendants did not enter appearance. The plaintiffs application had been certified as urgent on 4th February, 2004 and the plaintiffs directed to serve it and thereafter the application be listed for hearing within 14 days from the above date. The plaintiffs have on a balance of probabilities shown that they have a prima facie case with a likelihood of success and they may suffer irreparable loss if the orders sought are not granted.
I therefore grant the plaintiffs application dated 3rd February, 2004 together with costs.
DATED, SIGNED & DELIVERED at Nakuru this 19th day of February, 2004
DANIEL K. MUSINGA
AG. JUDGE