[2023] KEELC 21954 (KLR)

Karimi (Suing As The Administrator Of The Estate Of Samuel Mwangi Gitahi) v Njenga (Environment & Land Case 19 of 2023) [2023] KEELC 21954 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21954 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 19 of 2023

A Ombwayo, J

November 30, 2023

Between

Joyce Njoki Karimi

Plaintiff

Suing As The Administrator Of The Estate Of Samuel Mwangi Gitahi

and

John Michael Njenga

Defendant

Ruling

1. Joyce Njoki Karimi suing as the administrator of the estate of Samuel Mwangi Gitahi has come to this court against John Michael Njenga by way of plaint praying for a declaration that the defendant's acquisition and occupation of the deceased original parcel of land thus Elburgon/ Turi Block 5/97 subdivided into three portions namely: Elburgon/ Block 5/185, Elburgon/ Block 5/186 and Elburgon/ Turi Block 5/187 is illegal and unlawfully.

2. The plaintiff further prays that the subdivision resultant titles for Elburgon/ Turi Block 5/185, Elburgon/ Tuli Block 5/186 and Elburgon/ Turi Block 5/187 be accordingly cancelled and the property be restored in its original state.

3. She prays that the Nakuru county land officer be ordered by this Honourable court to rectify the register and restore land parcel No. Elburgon/ Turi Block 5/97 to its original state.

4. Lastly, she prays for an order of eviction of the defendant and demolition of any structure whether permanent or temporary erected by the defendant on the subject parcels of land namely: Elburgon/ Turi Block 5/187 Elburgon/ Turi Block 5/185 and Elburgon/ Turi Block 5/186 be issued plus costs of the suit.

5. The suit is accompanied with a notice of motion seeking orders of a temporary injunction restraining the defendant, his servants and/or agents from transferring, selling, charging or in any manner changing ownership to a third party of land parcels Nos: Elburgon/ Turi Block 5/185, Elburgon/ Turi Block 5/186 and Elburgon/Turi Block 5/187 till the hearing and determination of the main suit.

6. Moreover, that the Land registrar of Nakuru land office be restrained from registering any transfer or charge in respect of land parcels Nos: Elburgon/ Turi Block 5/185, Elburgon/ Turi Block 5/186 and Elburgon/ Turi Block 5/187 till the the hearing and determination of the main suit.

7. That the Land registrar of Nakuru land office be ordered to rectify the register of Elburgon/ Turi Block 5/ 97 and restore the said parcel of land to its original state and in addition cancel all entries of subdivisions and new titles issued to the defendant. She prays that the costs of the application be provided for.

8. The application is based on grounds that the defendant is in illegal and unlawful occupation of the deceased parcel of land which was fraudulently subdivided into three pieces. The plaintiff states that the defendant may at any time transfer the subject parcels of land to third parties as a way of defecting the plaintiff’s interest.

9. The application is supported with the affidavit of the plaintiff were she states that she is the administratrix of the estate of the deceased Samuel Mwangi Gitahi. The grant was confirmed hence she proceeded to the lands office for transmission. This application for transmission was refuted because the mother title was closed on subdivision. He was shocked with the development and states that the subdivision was done fraudulently without the surrender of the original title.

10. The defendant filed a notice of preliminary objection that the suit is time barred as the grant of letters of administration was issued in 1997 hence twelve years have passed after the issuance of the grant. He relies on section 7 of the Limitation of Action Act Cap 22 Laws of Kenya. The defendant was issued with the title deeds in the year 2001 and 2002 after a legal sale transaction and consequence transfer.

11. Moreover, the defendant states that the plaintiff has no locus standi as the deceased died testate as a Grant of probate of written will was issued and confirmed to James E G Mwangi on 17th April 1997. In succession cause No. 1900 of 2001.

12. In the replying affidavit the defendant states that he is an innocent purchaser for value. According to the defendant Samuel Mwangi wrote a will on 28th September 1992 the same was properly executed attested. This was the last will. The deceased executed a power of Attorney to James Gitahi Mwangi. That an advocate of the high court of Kenya one Francis Etole swore an affidavit in the succession cause No. 217 of 1995 detailing advocate client relationship with Samuel Mwangi Gitahi. That Samuel Mwangi Gitahi appointed his son James E G Mwangi to be executor and trustee. That the deceased bequeathed the land to his sons Benjamin Mugo and Eric Waweru Mwangi in equal shares with a residuary estate whatsoever to James E G Mwangi. A certificate of confirmation was issued on 11th July 1997.

13. James E G Mwangi later was registered as proprietor by transmission and caused a transfer of the suit property to Benjamin Mugo and Eric Waweru Mwangi. The suit was subdivided into three portions. Erick Waweru Mwangi alias Daniel Waweru Mwangi sold his portion to the defendant through a sale agreement. The purchase price has Kshs930,000 and was paid in full and transfer process initiated.

14. The consent of the Land Control Board where obtained. The transfer was registered on 27th December 2000 and the Defendant obtained good titles. According to the defendant the plaintiff is guilty of non- disclosure. That the applicant benefitted from the distribution of the confirmed grant in succession case No.1759 of 1995 by being allowed 4 hectares. The defendant states that the applicant has become mischievous because the executor of the will have died.

15. The plaintiff filed a lengthy reply to the preliminary objection stating that James Evans Gitah was never administrator to the estate and that the father died intestate and not testate.

16. In the supplementary affidavit, the plaintiff states that the suit was not filed 26 years from the date of the cause of action. She was issued with a grant of letter of administration but she agrees that she substituted her mother in 2021.

17. She states the existence of a will or not is not an issue as her mother was a sole administrator.

18. The defendant submits that it has been 24 years since the purported cause of action accrued in the year 2000. When Erick Waweru alias Daniel Waweru Mwangi and Benjamin Mugo were registered as owners of the suit land and title closed on subdivision. He relies on section 7 of the Land Adjudication Act Cap 22 Laws of Kenya. The defendant further urges that the estate of the deceased was devolved as per the deceased written will and therefore there is no cause of action. Moreover, the defendant argues that he was demonstrated to have followed the procedure and law in acquiring the property.

19. The defendant further argues that the plaintiff has not demonstrated sufficient interest in the property as the deceased died testate. The grant of probate of written will was issued and consequently confirmed to James E G Mwangi on 17th October 1995 in succession cause No. 179 of 1995. The plaintiff applicant benefited from the distribution in the succession cause. The defendant argues that the plaintiff has not demonstrate any prima facie case with a likelihood of success and does not demonstrate the irreparable loss likely to be suffered if injunction is not granted.

20. The locus classicus case on temporary injunction is the judicial decision of Giella Versus Cassman Brown (1973) EA 358. In the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR the Court of Appeal reiterated the holding in GiellaversusCassman Brown and held that;“in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”.

21. The import of these decisions is that the Plaintiff ought to, first, establish a prima facie case. In the decision of Mrao Ltd Versus First American Bank of Kenya Ltd (2003) eKLR the Court of Appeal gave a determination on a prima facie case. The court stated that:“... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

22. Secondly, The Plaintiff has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states;“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.

23. Thirdly, the Plaintiffs have to demonstrate that the balance of convenience tilts in their favour. In the case of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (2018) eKLR which defined the concept of balance of convenience as:“‘The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.

24. In the case of Paul Gitonga Wanjau Vs Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR, the court dealing with the issue of balance of convenience expressed itself thus:-“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”

25. I have considered the application, response and submissions on record and do find that the plaintiff is aware that there was a will in respect of the estate of Samuel Mwangi Gitahi but has chosen to blow hot and cold by stating that whether there was a will or not that is not an issue and the plaintiff has remained mum on the allegation that she benefited from the will by being bequeathed 4 hectares of the property in Londiani.

26. The plaintiff’s mother was issued with the confirmed grant on the 17th April 1997 but did not take any action until the plaintiff was substituted in 2021. She filed the suit on the 5th September 2023.

27. The court is of the view that the issue as to whether the suit is time barred cannot be determined now as the case is based on fraud and any action based on fraud ought to be filed within 3 years upon the discovery of fraud. We have not been told when the alleged fraud was discovered and therefore it is not possible to determine when the cause of action accrued.

28. On the issue as the whether the plaintiff has a prima facie case with a likelihood of success. I do find that the plaintiff has not responded to the allegation by the respondent that there was a will written on 28th September 1992 that was properly executed and attested. Before his demise, the deceased donated power to James Gitahi Mwangi on 16th August 1993 vide a Power of Attorney giving him legal authorization to make decision on his behalf on property and finances. That in the will the deceased appointed James E G Mwangi his son to be executor of the will. The defendant has demonstrated that there was succession case No.1759 of 1995 in the matter the late Samuel Mwangi Gitahi and grant of probate of the written will was issued to James E G Mwangi. The defendant has demonstrated how the proportion were transmitted to Erick Waweru Mwangi alias Daniel Waweru Mwangi who sold his portion to the defendant.

29. In view of the above facts the plaintiff has not demonstrated on a prima facie basis that she has sufficient interest on the suit property and that the same was obtained by the defendant fraudulently. Moreover, she has not moved to revoke the will. She considers the existence of the will not to be an issue. I do find that the plaintiff has not demonstrated on prima facie case with a likelihood of success.

30. On whether the plaintiff will suffer irreparable loss that cannot be compensated with damages, I do find that the plaintiffs the plaintiff has not demonstrated that she will suffer irreparable loss if the injunction is not given because she is not in possession of the parcel of land and that the plaintiff has been in possession for over 20 year and that she is already a beneficiary of will that she states is not an issue which underwent probate, confirmation and transmission to the beneficiaries and one of the beneficiaries sold his share to the defendant.

31. On balance of convenience, this court finds that it tilts toward not granting the injunction as the defendant will be more inconvenienced having owned to property for more than 20 years. Application is dismissed with costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 30TH DAY OF NOVEMBER 2023. A. O. OMBWAYOJUDGE