[2009] KEHC 2790 (KLR)
The court found that the applicant failed to demonstrate that he had the requisite legal standing as a legal representative, as there was no evidence of letters of administration having been issued. Additionally, the applicant did not provide documentary evidence of title to the disputed parcels of land. The...
Source-derived case information.
- Citation
- [2009] KEHC 2790 (KLR)
- Parties
- Applicant: Johana Kamoyo (Suing as the Legal Representative and Administrator of the estate of Daudi M’Nchebere M’Itanguru); Respondent: M’Njiru M’Mungania; Respondent: Maroo M’Mungania (Sued as the Legal Representative and Administrator of the Estate of M’Mungania M’Mwethiru Alias Mungania Mwatheru)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 112 of 2008
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Injunction and Inhibition
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Injunctions, Land Title Disputes, Succession and Administration, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johana Kamoyo (Suing as the Legal Representative and Administrator of the estate of Daudi M’Nchebere M’Itanguru)
Applicant
M’Njiru M’Mungania
Respondent
Maroo M’Mungania (Sued as the Legal Representative and Administrator of the Estate of M’Mungania M’Mwethiru Alias Mungania Mwatheru)
Respondent
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Injunction and Inhibition
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success to warrant the grant of an injunction and inhibition.
- 2 Whether the applicant will suffer irreparable loss if the orders sought are not granted.
- 3 Whether the applicant has legal standing as a legal representative without letters of administration.
Ratio Decidendi
The court found that the applicant failed to demonstrate that he had the requisite legal standing as a legal representative, as there was no evidence of letters of administration having been issued. Additionally, the applicant did not provide documentary evidence of title to the disputed parcels of land. The application sought orders over the entire parcel NJIA-CIA-MWENDWA/1591, whereas only one acre was in dispute. With these material deficiencies and unanswered questions, the court held that it would be unconscionable to grant the orders sought. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application for injunction and inhibition is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Suit 112 of 2008
JOHANA KAMOYO (Suing as the Legal Representative and Administrator
of the estate ofDAUDI M’NCHEBERE M’ITANGURU)...……. APPLICANT
VERSUS
M’NJIRU M’MUNGANIA …………....................……………1ST RESPONDENT
MAROO M’MUNGANIA (Sued as the Legal Representative and
Administrator of the Estate of M’MUNGANIA M’MWETHIRU
ALIAS MUNGANIA MWATHERU)……........................…2ND RESPONDENT
R U L I N G
The respondents were duly served to with this application but have failed to reply hence the exparte hearing. It is an application for orders of an injunction and inhibition. It is the applicant’s case that parcel of land No.NJIA-CIA-MWENDWA/336 is registered in the name of his late father, Daudi M’Nchebere M’Itanguru now deceased, while NJIA-CIA-MWENDWA/1591 was registered in the name of the respondents’ father, also deceased. It would appear that the two parcels of land are adjacent to each other, hence the applicant’s claim that 1 acre of NJIA-CIA-MWENDWA/336 has been lived off and annexed to NJIA-CIA-MWENDWA/1591.
The applicant deposes that he lives on NO.336 with his siblings and have constructed seven (7) houses on the said No.336 apart from planting coffee trees, miraa and crops. That the respondents have forcibly tried to evict the applicant and are plucking his miraa by force. That they are surveying and putting beacons on the disputed one acre.
As observed at the beginning of this ruling the respondents have not replied to this application. Similarly they did not attend the court when the same came up for hearing. This notwithstanding the burden was still upon the applicant to demonstrate that he has a prima faciecase with a probability of success. He must also show that if the order of injunction is not granted he stands to suffer substantial loss which cannot be compensated by an award of damages.
Finally it must be shown that the balance of convenience is in his favour. See Giella V Cassman Brown. The court in determining whether or not the applicant’s application discloses a prima facie case is not expected to determine with finality the rights of the parties. Rather it is concerned with seeing that the applicant has demonstrated the existence of some right which the respondent has violated as to call upon the latter to rebut. See Mrao Ltd V First Americal Bank (K) Ltd (2003) KLR 125.
It is the applicant’s case that No.336 was registered in the name of his father while NO.1591 was registered in the name of the respondent’s father. It is expressly stated by the applicant that both his father and the father of the respondents are deceased. Although the application is headed that the applicant is suing as the legal representative of his father and the 1st respondents sued as the legal representative of his father there is no evidence that indeed letters of administration in respect of the two have been issued to the applicant and the 1st respondent.
I am compelled to arrive at this conclusion, again, from the averments of the applicant in the plaint that he has pleaded with the respondents to file a succession cause in vain.
It appears to me that the applicant has used the term legal representative loosely without appreciating that it is a term of art used only in reference to a person to whom letters of administration have been issued.
Secondly no copies of the documents of title in respect of the two parcels have been exhibited and it is therefore difficult to confirm that indeed they are registered as alleged. Finally the application is seeking an injunction against the respondent and inhibition with regard to the entire No. 1591 yet what is in dispute is only one acre.
With all these questions remaining unanswered, it would be unconscionable to grant the prayers sought in this application. The same fails and is dismissed.
I make no orders as to costs.
Dated at Meru this 19th day of January 2009.
W. OUKO
JUDGE