[2017] KEELC 2479 (KLR)
The plaintiffs failed to provide sufficient evidence that the disputed properties, other than Mau Summit/Molo Block 1/140, were owned by their deceased parents. They also did not disclose the names of the deceased or whether any administrator had been appointed for the estate. As regards Mau Summit/Molo Block 1/140,...
Source-derived case information.
- Citation
- [2017] KEELC 2479 (KLR)
- Parties
- Plaintiff: James Kariuki Ngunjiri; Plaintiff: David Mirara Ngunjiri; Defendant: Joseph Ndungu Ngunjiri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 152 of 2017
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Judges
- DO Ohungo
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Succession Estates, Registration of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kariuki Ngunjiri
Plaintiff
David Mirara Ngunjiri
Plaintiff
Joseph Ndungu Ngunjiri
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case to warrant the grant of an interlocutory injunction against the defendant.
- 2 Whether the suit properties form part of the estate of the plaintiffs' deceased parents.
- 3 Whether the plaintiffs have provided sufficient evidence of ownership of the disputed properties by the deceased.
Ratio Decidendi
The plaintiffs failed to provide sufficient evidence that the disputed properties, other than Mau Summit/Molo Block 1/140, were owned by their deceased parents. They also did not disclose the names of the deceased or whether any administrator had been appointed for the estate. As regards Mau Summit/Molo Block 1/140, the defendant is the registered proprietor, and no basis was laid for restraining him from dealing with the property. The plaintiffs did not establish a prima facie case with a probability of success, and therefore, the threshold for granting an interlocutory injunction was not met. The application was dismissed without the need to consider the other tests for injunctions.
Court Disposition
application dismissed
Orders
- Notice of Motion dated 4th April 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAKURU
CASE No. 152 OF 2017
JAMES KARIUKI NGUNJIRI...........................................1ST PLAINTIFF
DAVID MIRARA NGUNJIRI.............................................2ND PLAINTIFF
VERSUS
JOSEPH NDUNGU NGUNJIRI.............................................DEFENDANT
RULING
(An application for injunction to restrain the defendant from dealing with suit properties; the applicants alleging suit properties are part of the estate of applicants’ deceased parents; applicant admitting that defendant is registered owner of one of the suit properties; no proof of ownership of other properties by the deceased; application dismissed)
1. This ruling is in respect of plaintiffs’ Notice of Motion dated 4th April 2017. The application is brought under Order 40 rules 1 and 2 of the Civil Procedure Rules and is supported by an affidavit sworn jointly by the plaintiffs. The plaintiffs seek the following orders:
1. (Spent).
2. (Spent).
3. The defendant by himself, servants and/or agents are restricted (sic) leasing, transferring or in any other manner whatsoever dealing with all those plots known as Mau Summit/Molo Block 1/140, Mutirithia/Mau Summit Block 1/13, plot No’s 302 and 562 pending hearing and determination of this suit.
4. THAT costs of this application be paid by the defendant.
2. Though served with the application, the defendant neither filed a response nor attended the inter parte hearing of the application. Consequently, the application was heard unopposed. Counsel for the plaintiffs relied entirely on the application and supporting affidavit and urged the court to allow the application.
3. The supporting affidavit is scanty. The plaintiffs depose that altthe properties referred to in the suit are part of the estate of the plaintiff’s parents and that the defendant has had himself registered as the proprietor of Mau Summit/Molo Block 1/40. That the defendant has carried out construction on properties of the deceased and has refused to stop despite demands. The plaintiffs therefore urge the court to grant the orders sought.
4. I have considered the application, supporting affidavit and submissions by counsel. The supporting affidavit is bare and does not put before the court adequate material to enable the court determine if a case has been made for the granting of an interlocutory injunction.
The properties in dispute are said to be part of the estate of the plaintiffs’ deceased parents. The names of the said parents are not given. Save for Mau summit/Molo Block 1/140 which is registered in the name of the defendant, details of the other properties which are said to constitute the estate of the deceased are not given. There is no proof that such properties were owned by the deceased. The court is not also told whether any administrator has been appointed in respect of the deceased’s estate pursuant to the Law of Succession Act. As regards Mau summit/Molo Block 1/140, I am not persuaded that I should issue an injunction against the defendant who is the registered proprietor.
5. In view of the foregoing, I amnot persuaded that the plaintiffs have a prima facie case with a probability of success. In the circumstances, I do not need to consider whether the other tests in Giella v Cassman Brown& Co Ltd [1973] EA 358 have been established. Notice of Motion dated 4th April 2017 is dismissed.No order on costs.
Dated, signed and delivered in open court at Nakuru this 13th day of June 2017.
D. O. OHUNGO
JUDGE
In the presence of:
Mr. Ikua for the plaintiffs/applicants
No appearance for the defendant/respondent
Court Assistant: Gichaba