[2018] KEELC 589 (KLR)
The court found that the plaintiffs had established a prima facie case for the preservation of the suit properties, as there were allegations of fraudulent transfer and partition of land belonging to a deceased person without the requisite letters of administration or confirmation of grant. Applying the principles...
Source-derived case information.
- Citation
- [2018] KEELC 589 (KLR)
- Parties
- Plaintiff: Lucy Wairimu Kianda; Plaintiff: Jane Wambui Kiongo; Plaintiff: Nicholas Wamai Njuki; Defendant: Esther Wangari Joseph; Defendant: Peter Ngure Njuki; Defendant: Henry Kahiga Muchoki; Defendant: Wilson Kuria Wamai; Defendant: Juliah Wanjari Njoroge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 7 of 2018
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted
- Judges
- BC Koech
- Legal Topics
- Interlocutory Injunctions, Fraudulent Transfer of Land, Succession Without Grant, Preservation of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wairimu Kianda
Plaintiff
Jane Wambui Kiongo
Plaintiff
Nicholas Wamai Njuki
Plaintiff
Esther Wangari Joseph
Defendant
Peter Ngure Njuki
Defendant
Henry Kahiga Muchoki
Defendant
Wilson Kuria Wamai
Defendant
Juliah Wanjari Njoroge
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for grant of an interlocutory injunction to restrain the defendants from dealing with the suit properties pending determination of the suit.
- 2 Whether the alleged transfer and partition of the suit properties by the defendants without letters of administration or confirmation of grant was unlawful and fraudulent.
- 3 Whether the plaintiffs are entitled to preservation orders over the suit properties.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case for the preservation of the suit properties, as there were allegations of fraudulent transfer and partition of land belonging to a deceased person without the requisite letters of administration or confirmation of grant. Applying the principles in Giella v Cassman Brown, the court held that the suit lands should be preserved to prevent possible alienation or disposal pending the hearing and determination of the main suit. The court was satisfied that the balance of convenience lay in favour of granting the injunction to maintain the status quo and prevent irreparable harm to the estate. The court therefore granted the...
Court Disposition
interlocutory injunction granted
Orders
- The defendants are restrained by injunction from alienating, transferring, selling, disposing, using, charging, mortgaging, developing on or constructing on, trespassing on, entering upon, or in any manner whatsoever dealing with the suit properties Loc.12/Sub-Loc 1/Gakira/T.551, T.552, T.553, T.554, T.555, and 1501...
- No orders as to costs.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MURANG’A
ELC N0. 7 OF 2018
LUCY WAIRIMU KIANDA..................................1ST PLAINTIFF /RESPONDENT
JANE WAMBUI KIONGO....................................2ND PLAINTIFF /RESPONDENT
NICHOLAS WAMAI NJUKI................................3RD PLAINTIFF /RESPONDENT
VS
ESTHER WANGARI JOSEPH..............................1ST DEFENDANT/APPLICANT
PETER NGURE NJUKI.........................................2ND DEFENDANT/APPLICANT
HENRY KAHIGA MUCHOKI.............................3RD DEFENDANT /APPLICANT
WILSON KURIA WAMAI.....................................4TH DEFENDANT/APPLICANT
JULIAH WANJERI NJOROGE...............................5TH DEFENDANT/APLICANT
RULING
1. This Ruling relates to the Notice of Motion filed by the Plaintiffs /Applicant (called Plaintiff ) under certificate of urgency on the 30/1/2018 seeking the following orders;
a) …..Spent
b) That the Defendants herein Esther Wangari Joseph, Peter Ngure Njuki, Henry Kahiga Muchoki, Wilson Kuria Wamai and Juliah Wanjeri Njoroge be restrained by injunction from either by themselves, their servants, agents, assignees or any persons claiming title through the Defendants or any of them from alienating, transferring, selling, disposing, using, charging, mortgaging, developing on or constructing on, trespassing on, entering upon, or in any manner whatsoever dealing with the suit property herein:-
-Loc.12/Sub-Loc 1/Gakira/T.551
-Loc.12/Sub-Loc 1/Gakira/T.552
-Loc.12/Sub-Loc 1/Gakira/T.553
-Loc.12/Sub-Loc 1/Gakira/T.554
-Loc.12/Sub-Loc 1/Gakira/T.555
-Loc.12/Sub-Loc 1/1501
pending the hearing and determination of this application or until further orders of this Honourable Court.
c) That the Defendants herein Esther Wangari Joseph, Peter Ngure Njuki, Henry Kahiga Muchoki, Wilson Kuria Wamai and Juliah Wanjeri Njoroge be restrained by injunction from either by themselves, their servants , agents, assignees or any persons claiming title through the Defendants or any of them from alienating, transferring, selling, disposing, using, charging, mortgaging, developing on or constructing on, trespassing on, entering upon, or in any manner whatsoever dealing with the suit property herein:-
- Loc.12/Sub-Loc 1/Gakira/T.551
- Loc.12/Sub-Loc 1/Gakira/T.552
-Loc.12/Sub-Loc 1/Gakira/T.553
-Loc.12/Sub-Loc 1/Gakira/T.554
-Loc.12/Sub-Loc 1/Gakira/T.555
-Loc.12/Sub-Loc 1/1501
pending the hearing and determination of this application or until further orders of this Honourable Court.
That the costs of this application be borne by the Defendants.
2. The application is premised on the grounds stated as below;
a) The Defendants have unlawfully and fraudulently transferred and partitioned the suit property from the name of a deceased person without letters of administration or certificate of confirmation of grant contrary to section 61 of the Land Registration Act, 2012.
b) The Defendants have fraudulently forged the signatures of the 1st and 2nd Plaintiff in transferring and partitioning some of the suit property.
c) The Defendants may dispose of the suit property to further perpetrate their illegal activities and it is therefore necessary to preserve the property pending the hearing of this application and the main suit.
d) Such further reasons to be given at the hearing of this application.
3. Vide a Replying Affidavit sworn by one Esther Wangari Joseph dated the 14/2/18 the Defendants are opposed to the application on grounds interalia that the Plaintiffs have not taken out letters of administration for the estate of their deceased father one Joseph Njuki Michuki. Secondly that the case has been filed in the wrong fora.
4. Parties filed written submissions which I have carefully read and considered.
5. Going by the acknowledged case on granting injunctions of Giella Vs Cassman Brown, Order 40 rule 1 of the Civil Procedure Rules and section 63(e) of the Civil Procedure Act , am satisfied that the suit lands should be preserved pending the hearing and the determination of the suit. I therefore grant orders in terms of 3 of the Notice of Motion dated 30/1/2018.
6. I make no orders as to costs.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 15TH NOVEMBER DAY OF 2018.
J G KEMEI
JUDGE
Delivered in open Court in the presence of;
Advocate and Plaintiffs are absent
Mwangi Ben for the 1st – 5th Defendants Present
Irene and Njeri, Court Assistants