[2017] KEHC 2312 (KLR)
The court found that the protester had demonstrated a prima facie case for the preservation of the estate property, as the confirmed grant required equal distribution among the deceased's wives and the representative of the first house had acted unilaterally by transferring and selling the entire parcel. There was a...
Source-derived case information.
- Citation
- [2017] KEHC 2312 (KLR)
- Parties
- Petitioner: Johnson A. Mwangi Murege; Protester: Obede Mwoya Murege
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 529 of 2006
- Procedural Posture
- Succession Cause / Interlocutory Application (notice of Motion) for Injunctive Relief Pending Hearing of Protest
- Outcome
- Interim injunction granted; application certified urgent; matter to be heard inter partes with protest.
- Judges
- NA Matheka
- Legal Topics
- Administration of Estates, Confirmation of Grant, Injunctive Relief, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson A. Mwangi Murege
Petitioner
Obede Mwoya Murege
Protester
Procedural Posture
Succession Cause / Interlocutory Application (notice of Motion) for Injunctive Relief Pending Hearing of Protest
Legal Issues
- 1 Whether the Land Control Board should be restrained from discussing or granting consent to subdivide or transfer land parcel KIINE/RUKANGA/1596 pending determination of the protest.
- 2 Whether the transfer and sale of the estate property by the representative of one house was contrary to the confirmed grant and interests of other beneficiaries.
Ratio Decidendi
The court found that the protester had demonstrated a prima facie case for the preservation of the estate property, as the confirmed grant required equal distribution among the deceased's wives and the representative of the first house had acted unilaterally by transferring and selling the entire parcel. There was a pending protest challenging this action, and allowing the Land Control Board to grant consent for the transaction would prejudice the interests of other beneficiaries and potentially render the protest nugatory. The court therefore exercised its discretion to grant an interim injunction restraining the Land Control Board from discussing or granting consent regarding the...
Court Disposition
Interim injunction granted; application certified urgent; matter to be heard inter partes with protest.
Orders
- The Notice of Motion dated 6th April 2017 is certified as urgent.
- The Land Control Board, Kandongu Mwea West Kerugoya Sub-County is restrained from discussing or granting consent regarding land parcel KIINE/RUKANGA/1596 until the hearing and determination of the protest.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 529 OF 2006
IN THE MATTER OF THE ESTATE OF NAFTALY MUREGE MUTHIGANI (DECEASED)
JOHNSON A. MWANGI MUREGE……………………………………..……. PETITIONER
-V E R S U S –
OBEDE MWOYA MUREGE………….………………..……………………..PROTESTER
R U L I N G
6/4/17
Coram – T. Matheka J.,
Court Asst. Harriet
In chambers
What is before me is the undated Notice of Motion brought under certificate of urgency by Obede Muoya Murege the protester in this matter.
He seeks inter alia orders-
1. That the application be certified urgent and heard ex- parte.
2. That the court be pleased to issue orders restraining the LAND CONTROL BOARD KANDONGU SUB-COUNTY – MWEA WEST, KIRINYAGA COUNTY from discussing any matter relating to land parcel No. KIINE/RUKANGA/1596 on issuing any consent to subdivide/transfer or the land on 11th April 2017 until the matter scheduled for hearing on 3rd May 2017 is heard and determined.
The motion is supported by the applicant’s affidavit sworn on the 6th April, 2017. The main ground for the application is that, on 27th July, 2016, this court issued confirmation of certificate of grant with regard to the estate of NAFTALLY MUREGE MUTHIGANI (deceased). In the grant the deceased’s estate was shared equally among his wives – and a representative was appointed to hold each house’s share in trust for the rest of the family.
In this case the applicant has deponed, and attached a copy of the confirmed grant, and a copy of a green card, where the representative of the first wife’s house, one JOHNSON A. MWANGI MUREGE, caused the whole parcel KIINE/RUKANGA/1596, to be transferred to him, and has sold the same to one KENNEDY KIMANI WARIUA. Meanwhile there is a protest pending for hearing on the 3rd May, 2017.
According to the supporting affidavit, the respondent intends to appear before the land control board Kagondu Mwea West on 11th April, 2017 with regard to the said transaction.
I have perused the Notice of Motion, the supporting affidavit and the certificate of urgency. I have perused the court record. I order: -
1. That the Notice of Motion supported by the certificate of urgency dated 6th April, 2017 be certified as urgent.
2. That the LAND CONTROL BOARD, KANDONGU MWEA WEST KERUGOYA SUB-COUNTY be and is hereby restrained from discussing land parcel No. KIINE/RUKANGA/1596 or issuing any consent to any transaction regarding the parcel on 11th April,2017 at any time before the hearing and determination of the protest coming for hearing on 3rd May, 2017. That this application be served within 7 days from today’s date. That respondent to file and serve a response within 14 days from date of service.
That the application be heard inter partes on 3rd May, 2017 instead of or together with the protest as the court may deem fit.
Orders accordingly.
T. MATHEKA
JUDGE
6/4/2017