[2002] KEHC 749 (KLR)
The court held that the first defendant, as the registered proprietor of the suit land, holds an absolute and indefeasible title and is entitled to deal with the land as he pleases, including making gifts inter vivos to any of his children. The plaintiffs, being married daughters, have not established any legal or...
Source-derived case information.
- Citation
- [2002] KEHC 749 (KLR)
- Parties
- Plaintiff: Jane Muthoni Kuhuniza & 2 Others; Defendant: Joseph Fituere & 2 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1717 of 2002
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctions, Gifts Inter Vivos, Beneficial Interest, Inheritance Rights, Absolute Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jane Muthoni Kuhuniza & 2 Others
Plaintiff
Joseph Fituere & 2 Others
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs, as married daughters of the first defendant, have a legal or beneficial interest in the suit land during the lifetime of their father.
- 2 Whether the court can restrain the first defendant from disposing of his land by way of injunction.
Ratio Decidendi
The court held that the first defendant, as the registered proprietor of the suit land, holds an absolute and indefeasible title and is entitled to deal with the land as he pleases, including making gifts inter vivos to any of his children. The plaintiffs, being married daughters, have not established any legal or beneficial interest in the land during their father's lifetime. The court found that granting the injunction would unlawfully restrain the first defendant from exercising his legal rights over his property. Therefore, the application for injunction lacked legal foundation and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs to the defendants.
- Ruling to be typed and supplied as prayed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 1717 OF 2002
JANE MUTHONI KUHUNIZA & (2) OTHERS……………….PLAINTIFF
VERSUS
JOSEPH FITUERE & (2) OTHERS…………………………..DEFEDANT
RULING
This is the plaintiffs application for an order of injunction to restrain the defendants from interfering with or in any was disposing by way of transfer, sale, exchange or otherwise land titles no. Sigona/308 and 311 until the determination of the suit.
In the suit, plaintiffs seeks a declaratory order that, by reasons being children of first defendant, they are legally entitled to benefit from or inherit the first defendants wealth or estate.
The three plaintiffs are married daughters of the first defendant. The three plaintiffs live in their respective husband’s homes. The second defendant is a son of first defendant and a brother to plaintiffs.
According to the 2nd defendant, first defendant has eight children; namely the three plaintiffs, two unmarried daughters and three sons. Further, according to the 2nd defendant; the first defendant has agreed to give his three sons and the two unmarried daughters respective shares of the land but he has refused to give any to each of the plaintiffs who are married.
The essence of the application is to restrain first defendant from giving gifts of his land to his children in his lifetime. The first defendant has an absolute and indefeasible title to his lands. There is no restrictions or conditions imposed on his title. He can in his lifetime give gifts inter vivos to any of his children as he pleases.
He cannot be forced by court or by anybody to act against his wishes.
The applicants have not disclosed any legal right or beneficial interest to the land.
They are claiming the land from their father merely on the ground that they are children of the first defendant. They cannot during the lifetime of their father force him to give them gifts of land inter vivos.
The order sought if granted will restrain first defendant from exercising his legal rights over his land. That is to say that if the order of injunction is granted it will, be against the law which gives first defendant absolute right to his land.
The application has no legal foundation. It is dismissed with costs.
E. M. Githinji
Judge
29. 11. 2002
11. 30 a.m.
Jane Muthoni – 1st plaintiff absent Serah Wangari – her daughter holding brief.
Geoffrey Kamau
2nd defendant present 2nd defendant
I apply for certified copy of the Ruling
E. M. Githinji
JUDGE
Order: Ruling to be typed and supplied as prayed
E.M. Githinji
JUDGE