[2005] KEHC 1564 (KLR)
The court found that the plaintiff had not established a prima facie case with a probability of success, as the land in dispute forms part of the estate of the deceased and the grant of letters of administration had not yet been confirmed. The proper forum for determining entitlement to the land is in the succession...
Source-derived case information.
- Citation
- [2005] KEHC 1564 (KLR)
- Parties
- Plaintiff: Kakuzi Road Quarry Works Ltd; Defendant: Michael Nganga Wainaina; Defendant: Paul Kamweru Wainaina; Defendant: Peter Ngigi Wainaina; Defendant: Ambrose Karanja Wainaina; Defendant: Tabitha Wambui Wainaina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 115 of 2005
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Probate and Administration, Allotment of Land, Prima Facie Case, Adequacy of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kakuzi Road Quarry Works Ltd
Plaintiff
Michael Nganga Wainaina
Defendant
Paul Kamweru Wainaina
Defendant
Peter Ngigi Wainaina
Defendant
Ambrose Karanja Wainaina
Defendant
Tabitha Wambui Wainaina
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case with a probability of success for the relief sought.
- 2 Whether the plaintiff is entitled to interlocutory relief pending confirmation of grant in the deceased estate.
- 3 Whether damages would be an adequate remedy in the circumstances.
Ratio Decidendi
The court found that the plaintiff had not established a prima facie case with a probability of success, as the land in dispute forms part of the estate of the deceased and the grant of letters of administration had not yet been confirmed. The proper forum for determining entitlement to the land is in the succession proceedings, where the court will decide which beneficiaries are entitled to the property. Furthermore, the court held that damages would be an adequate remedy for the plaintiff if it ultimately succeeds. The court was not satisfied that the plaintiff had acted with clean hands and therefore declined to grant the interlocutory relief sought.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Case 115 of 2005
KAKUZI ROAD QUARRY WORKS LTD…………………PLAINTIFF VERSUS MICHAEL NGANGA WAINAINA………….………..1ST DEFENDANT PAUL KAMWERU WAINAINA……………………..2ND DEFENDANT PETER NGIGI WAINAINA……………………….….3RD DEFENDANT AMBROSE KARANJA WAINAINA………………...4TH DEFENDANT TABITHA WAMBUI WAINAINA…………………...5TH DEFENDANT
RULING
The Defendant is the allottee of portions of L.R Thika 14/968 and Thika 14/969 of about 3. 2 hectares. The Company is owned by the brother of the Respondents and his wife. He took out letters of administration to his father’s estate. No confirmation of grant has l am informed been issued. The land in question from which the land is allotted is said by the Defendants to be a portion of the land owned by the deceased father of the Defendants and the director of the Plaintiff Company.
I have considered the contents of the Supporting Affidavit, Replying Affidavit and Supplementary Affidavit. From the evidence adduced it appears that the land was the subject matter of an agreement between the Commissioner of Lands and the deceased dated the 1/4/1965 to the deceased father of the Defendants including the director of the Plaintiff.
In order to resolve the dispute between the parties and children and beneficiaries of the deceased it is necessary for the grant to be confirmed and in the proceedings thereon orders made as to which of the beneficiaries is entitled to the land claimed by the Plaintiff. I am not convinced that Applicant has acted with clean hands.
The Applicant has not in my view shown it has at present a prima facie case with a probability of success. In any event damages would be an adequate remedy.
In the result l am not prepared to grant the relief sought and dismiss this application with costs to the Respondent.
DATED and DELIVERED at NAIROBI on 18th March 2005.
P.J RANSLEY
JUDGE