[2017] KEELC 3716 (KLR)
The court found that both the Plaintiff, as the daughter of the deceased, and the Defendant's late husband, as a son of the deceased, have potential claims to the estate of the late Nzioka Mwilu. The Plaintiff is currently in possession of the suit property, and the Defendant did not dispute this fact. The...
Source-derived case information.
- Citation
- [2017] KEELC 3716 (KLR)
- Parties
- Applicant: Kasalu Nzioka Mwilu; Respondent: Joyce Ndunge Mutei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2 of 2016
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Application
- Outcome
- Application allowed; interlocutory injunction granted.
- Judges
- OA Angote
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Succession and Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasalu Nzioka Mwilu
Applicant
Joyce Ndunge Mutei
Respondent
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Plaintiff is entitled to an interlocutory injunction restraining the Defendant from interfering with parcel No. Mavoko Town Block 3/2592 pending the hearing of the main suit.
- 2 Whether the Plaintiff has demonstrated a prima facie case with a probability of success.
- 3 Whether the status quo regarding possession and title should be maintained until the suit is heard and determined.
Ratio Decidendi
The court found that both the Plaintiff, as the daughter of the deceased, and the Defendant's late husband, as a son of the deceased, have potential claims to the estate of the late Nzioka Mwilu. The Plaintiff is currently in possession of the suit property, and the Defendant did not dispute this fact. The Plaintiff's allegations of fraudulent transfer and entitlement as a beneficiary raise triable issues that can only be resolved at the full hearing. To prevent prejudice and maintain the status quo, the court determined that an interlocutory injunction restraining the Defendant from interfering with the Plaintiff's possession of the property was warranted until the main suit is heard and...
Court Disposition
Application allowed; interlocutory injunction granted.
Orders
- The Defendant/Respondent herself or her agents are restrained from selling, transferring or interfering with the Plaintiff’s quiet possession of parcel No. Mavoko Town Block 3/2592 pending the hearing and determination of the main suit.
- Costs to abide the application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC CASE NO. 2 OF 2016
KASALU NZIOKA MWILU …………………………..PLAINTIFF/APPLICANT
VERSUS
JOYCE NDUNGE MUTEI ……………………….DEFENDANT/RESPONDENT
RULING
The application before me is the one dated 24th March, 2016. In the Motion, the Plaintiff is seeking for the following orders.
1. That the Defendant/Respondent herself or her agents be restrained from selling, transferring or interfering with the Plaintiff’s quiet possession of parcel No. Mavoko Town Block 3/2592 pending the hearing and determination of the main suit.
2. Costs do abide the application.
The Application is supported by the Affidavit of the Plaintiff who has deponed that the suit property is family land; that the Defendant is his sister – in- law; that it is him who is in possession of the land that the Defendant had the property fraudulently registered in her name.
The Defendant filed a Notice of Preliminary Objection and a Replying Affidavit. In the Preliminary Objection, the Defendant averred that the Plaintiff lacks capacity to file the suit against her.
In her Replying Affidavit, the Defendant deponed that the Applicant is victimizing her because she is a widow; that the Applicant’s claim is against the Akamba customary law and that the land in question was registered in the name of her late husband.
In her Supplementary Affidavit, the Plaintiff deponed that the Respondent had the suit property unlawfully transferred to her because at the time of the transfer her father, Nzioka Mwilu, had died; that the purported transfer was done in the year 2001 and that she is the lawful beneficiary, heir and daughter of the deceased.
It is the Plaintiff’s deposition that she is the one who is in possession of the suit property.
The advocates filed brief submissions which I have considered.
The Plaintiff’s case is that being the daughter to the late Nzioka Mwilu Kitaa who died in 1996, she is the one who is entitled to the suit property and not the Defendant, who is her sister – in – law.
On the other hand it is the Defendant’s case that the suit property was transferred to her late husband by her late father in law.
The Defendant has annexed on her affidavit a letter of allotment by Lukenya Ranching Farming Co-operative Society limited which shows that Vincent Mulei Nzioka was allocated the suit property on 22nd December, 1992.
Indeed, both the Plaintiff, being the daughter of the late Nzioka Mwilu and the Defendant’s late husband, are entitled to the share of the Estate of the late Nzioka Mwilu.
Although the Plaintiff has deponed that the suit property was fraudulently registered in the name of his late brother in-law and now the Defendant, that issue can only be determined after trial.
The Defendant has not denied that it is the Plaintiff who is in possession of the suit land.
In the circumstances, the status quo prevailing now both in terms of occupation and the title should be maintained pending the hearing of the suit.
For those reasons, I allow the application dated 24th March, 2016 as prayed.
Dated, signed and delivered at Machakos this 27th day of January, 2017.
O. A. ANGOTE
JUDGE