[2008] KEHC 3071 (KLR)
The court found that the plaintiff had demonstrated a prima facie case for the grant of an interlocutory injunction. The suit property was part of the estate of the deceased, and upon the death of the widow (who had a life interest), the property devolved to the children in equal shares. No court consent had been...
Source-derived case information.
- Citation
- [2008] KEHC 3071 (KLR)
- Parties
- Plaintiff: John Muriithi Kiragu; Defendant: Mary Nyambura Jonah; Defendant: County Council of Kirinyaga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 150 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- Application for interlocutory injunction allowed.
- Legal Topics
- Injunctive Relief, Succession of Property, Leasehold Interest, Locus Standi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Muriithi Kiragu
Plaintiff
Mary Nyambura Jonah
Defendant
County Council of Kirinyaga
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of an interlocutory injunction restraining the defendants from alienating the suit property.
- 2 Whether the sale or intended subdivision of the suit property is valid in light of the succession proceedings and the Registered Land Act.
- 3 Whether the leasehold interest in the suit property has expired and the effect thereof on the parties' rights.
Ratio Decidendi
The court found that the plaintiff had demonstrated a prima facie case for the grant of an interlocutory injunction. The suit property was part of the estate of the deceased, and upon the death of the widow (who had a life interest), the property devolved to the children in equal shares. No court consent had been obtained for the sale or alienation of the property as required by the Law of Succession Act. The court held that if the injunction was not granted, the defendants would likely alienate the property, causing irreparable loss to the plaintiff and his siblings that could not be compensated by damages. The court also noted that the validity of the sale, the issue of locus standi,...
Court Disposition
Application for interlocutory injunction allowed.
Orders
- An injunction is granted restraining the defendants, their servants or agents from subdividing, disposing of, charging, assigning, or in any other way alienating parcel No. Mwerua/Kagio/212/48 pending the hearing and determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL CASE 150 OF 2007
JOHN MURIITHI KIRAGU…………………………………….PLAINTIFF
VERSUS
MARY NYAMBURA JONAH…………………….…….1ST DEFENDANT
COUNTY COUNCIL OF KIRINYAGA………….……...2ND DEFENDANT
RULING
The application dated 4/12/2007 seeks orders to restrain the defendants themselves, their servants or agents from subdividing disposing off charging, assigning or in any other way alienating the suit premises parcel No. Mwerua /Kagio/212/48 pending the hearing and determination of this suit. Exhibit JNK2 shows that the property was registered in the names of Kiragu Stephen and James Kamanda Mwangi as the proprietors of the leasehold interest subject to the agreement and other matters contained in the registered lease, to the entries in the register relating to the lease and to such of the overriding interests set out in Section 30 of the land Registered Act as may for the time being subsist and affect the land comprised in the lease. The lessor is Kirinyaga County Council for term of 33 years given 1/1/1970.
On 22/11/2007 a letter was written by the Council addressed to Jane Wangechi Kiragu and Mary Nyambura Jonah advising Council Surveyor would visit the land for purpose of subdividing the plot subject to this suit. (“plot No. 48”) First of all this letter was addressed to a deceased person namely Jane Wangechi Kiragu.
Secondly as stated above this land was partly of Kiragu Stephen deceased husband of Jane Wangechi Kiragu who was granted letters of administration of the estate of her husband but she died on 25/3/2007. At the time of her death she had obtained orders for confirmation of the grant and the assets of deceased being distributed under the Succession Act Cap.160 Laws of Kenya Section 35 thereof states the widow has a life interest on all assets “upon death of surviving spouse the estate shall be divided equally among the children of deceased Section 37 also controls the power of the surviving spouse. “Provided that in the case of immovable property the exercise of that power shall always be subject to the consent of the court.” No consent of court had been obtained to the sale transaction
It is therefore to be noted that assets in this case were confirmed to the widow of deceased and upon her death the properties are now of her children in equal shares the issue of locus stadi can therefore be arguable. The issue of the validity of sale is also arguable. Again whether or not the leasehold interest has expired is a matter for determination by court. Section 64 (2) Registered Land Act 300. Determination of leasehold interest is completed on application to Registrar who shall cancel the lease.
I have considered the submissions by counsel on both sides and the provision of Registered Land Act and Succession Act. I am of considered view that the plaintiff/Applicant has demonstrated a prima facie case. It is clear if order is not granted the Defendants will alienate the suit property thus causing loss to the Applicant and his siblings which cannot be compensated in damages.
I therefore allow the application and grant orders as prayed. The costs shall be in the cause. It is so ordered.
Dated this 7th April, 2008.
J. N. KHAMINWA
JUDGE
7/4/2008
Khaminwa – Judge
Njue – Clerk
Mr. Kingara
Mr. Maina Kagio
Mr. Magee HB for Mr. Chomba
Ruling read in open court.
J. N. KHAMINWA
JUDGE