[2008] KEHC 1733 (KLR)
The court found that the application before it was interlocutory and that the main hearing for revocation of grant was yet to be determined. The issue of whether the respondent was a bona fide purchaser under section 93 of the Succession Act would be addressed at the main hearing. At this interlocutory stage, the...
Source-derived case information.
- Citation
- [2008] KEHC 1733 (KLR)
- Parties
- Applicant: Tabitha Wanjiku Barii; Respondent: James Githaka Mwangi; Respondent: Jane Nduta Barii
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 549 of 2006
- Procedural Posture
- Succession Cause / Interlocutory Application for Injunction Pending Hearing of Summons for Revocation of Grant
- Outcome
- Temporary injunction granted pending hearing and determination of the summons for revocation of grant.
- Judges
- MM Kasango
- Legal Topics
- Injunctions, Confirmed Grant, Revocation of Grant, Transfer of Land, Succession Act Section 93
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Wanjiku Barii
Applicant
James Githaka Mwangi
Respondent
Jane Nduta Barii
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Injunction Pending Hearing of Summons for Revocation of Grant
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from entering, cultivating, occupying or interfering with parcel Othaya/Kiahagu/1967 pending the hearing of the summons for revocation of grant.
- 2 Whether section 93 of the Succession Act protects the respondent as a purchaser of the property from the personal representative.
Ratio Decidendi
The court found that the application before it was interlocutory and that the main hearing for revocation of grant was yet to be determined. The issue of whether the respondent was a bona fide purchaser under section 93 of the Succession Act would be addressed at the main hearing. At this interlocutory stage, the court was satisfied that the applicant had established a prima facie case for the grant of a temporary injunction to preserve the status quo and prevent irreparable harm to the applicant and her son, who were in occupation of the land. The court held that the balance of convenience favoured granting the injunction pending the determination of the summons for revocation of grant.
Court Disposition
Temporary injunction granted pending hearing and determination of the summons for revocation of grant.
Orders
- A temporary injunction is granted restraining James Githaka Mwangi, his servants, agents, or family from entering parcel NO. OTHAYA/KIAHAGU/1967 and interfering with the applicant’s peaceful occupation thereof until the hearing and determination of the Summons for Revocation dated 25th June 2007.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 549 of 2006
BARII KIBUI ALIAS AMOS BARII KIBUI …………………….. DCD
AND
JANE NDUTA BARII …….………..…………………… PETITIONER
RULING
The Summons dated 5th December 2007 is brought by Tabitha Wanjiku Barii. She seeks an injunction against James Githaka Mwangi. The restraining orders that she seeks is to stop he said Mwangi from entering, cultivating, occupying and or interfering with parcel land No. Othaya/Kiahagu/1967. The background to this matter is that the co-wife to Tabitha Wanjiku that is Jane Nduta obtained a confirmed grant on 19th April 2007 in respect of a written will. On receiving a confirmed grant she sold the property Othaya/Kiahagu/1964 to Mwangi. The applicant in the present summon stated that the said Mwangi did not take possession of that property after the purchase. The same is occupied by the son of applicant Benson Kibui. The said son has build on that land and the applicant carries on farming of subsistence crops on the same land. On 4th December 2007 she stated that Mwangi with his workers entered the land and started digging. In so doing they threatened to evict her son from that land. It is on that basis that the applicant seeks an injunction. Both Mwangi and Jane Nduta opposed the application. In their submissions they argued that Mwangi is protected by section 93 of the Succession Act. Being so protected they argued that the orders sought cannot be granted.
Section 93(1) of the Succession Act provides as follows;-
“A transfer of any interest in immovable or movable property made to a purchaser either before or after the commencement of this act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this act.
(2) a transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have noticed that all the debts, liabilities, funeral and testamentary or administration expenses, duties and legacies of the deceased have not been discharged nor provided for.”
It ought to be understood that what is before court is Interlocutory Application. The main hearing for revocation of grant is yet to be heard. That being the case the issue of whether or not the said Mwangi purchased the property will be subject for consideration at the main hearing. The court at this stage is of the view that the orders to restrain Mwangi are merited. The court grants a temporary injunction to restrain James Githaka Mwangi, his servant, agents or his family from entering parcel NO. OTHAYA/KIAHAGU/1967 and interfering with the applicant’s peaceful occupation thereof until the hearing and determination of the Summons for Revocation dated 25th June 2007.
Dated and delivered at Nyeri this 10th day of April 2008.
MARY KASANGO
JUDGE