[2014] KEELC 222 (KLR)
The court found that the applicant failed to demonstrate a prima facie case with a probability of success. The evidence presented did not establish that the suit land was registered in the respondent's name by way of succession, as alleged. The applicant did not provide documentation, such as a green card or...
Source-derived case information.
- Citation
- [2014] KEELC 222 (KLR)
- Parties
- Plaintiff: Margaret Muthoni Waichere; Defendant: John Karanja Waichere
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 91 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed
- Judges
- EO Obaga
- Legal Topics
- Injunctions, Succession Disputes, Ownership of Land, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Muthoni Waichere
Plaintiff
John Karanja Waichere
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case with a probability of success to warrant the grant of a temporary injunction.
- 2 Whether the applicant will suffer irreparable injury if the injunction is not granted.
- 3 Whether the balance of convenience favours the grant of an injunction.
Ratio Decidendi
The court found that the applicant failed to demonstrate a prima facie case with a probability of success. The evidence presented did not establish that the suit land was registered in the respondent's name by way of succession, as alleged. The applicant did not provide documentation, such as a green card or succession proceedings, to support her claim. Furthermore, the applicant's relationship to the deceased was not clearly established, as the deceased was her uncle, not her father, and the law provides for inheritance by relatives in the absence of children. The applicant had already lodged a caution against the title and could pursue her interests in the succession cause if one...
Court Disposition
application dismissed
Orders
- The applicant's application for injunction is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 91 OF 2014
MARGARET MUTHONI WAICHERE :::::::::::::::::::::::: PLAINTIFF
VERSUS
JOHN KARANJA WAICHERE :::::::::::::::::::::::::::::::::: DEFENDANT
R U L I N G
The applicant is a sister to the respondent herein. On 26/5/2014 the applicant filed a notice of motion in which she seeks orders of injunction restraining the respondent from dealing in any manner with LR No. Saboti/Kiboroa Block 1/Gitwamba/271 (Suit land). The respondent who was duly served for inter-partes hearing neither filed any grounds of opposition nor replying affidavit in opposition to the motion. The motion therefore proceeded ex-parte.
The applicant contends that the suit land belonged to her late father Kamau Chege. That the respondent went ahead and carried out Succession Cause in respect of the estate of their father without the consent of other family members and had the entire suit land transferred into his name.
The applicant contends that the applicant's intentions are malicious and are meant to disinherit the other family members where she is one of the beneficiaries and evict her from the suit land. It is on this basis that she is seeking an injunction restraining the respondent from dealing with the suit land.
The principles for grant of temporary injunction are now well settled. First an applicant must demonstrate that he has a prima facie case with probability of success. Secondly an injunction will not normally be issued unless the applicant might otherwise suffer irreparable injury which may not be compensated in damages. Thirdly, if the court if in doubt, it will decide the application on a balance of convenience.
The issue for determination herein is whether the applicant has demonstrated that she is entitled to the injunction sought. The applicant contends that the respondent had himself registered as owner of land following succession. There is nothing on record to show that the suit land was registered as a result of succession. If this were to be the case the applicant should have produced an extract of the title (green card) to show whether the suit land was registered in the name of the respondent by way of transmission. The applicant only annexed a copy of an official search which shows that the respondent was registered as owner of the suit land on 13/12/2011.
Though the applicant has averred that Kamau Chege was her father, a look at a letter from the Senior Assistant Chief of Kiboroa sub- location shows that Kamau Chege (the deceased) had no children and that he was a brother of Paul Waichere Chege who is the father of both the applicant and respondent. I am aware that in most African societies, an uncle is normally referred to as “father”. This being the case it is not clear on how the applicant is laying a stake on the land of her uncle. If the applicant felt disinherited, then she should have raised that in the Succession cause which would have then settled the matter as the law provides on who is to inherit the estate of one who has no children but has known relatives. Since the applicant has not annexed any document to show that there was any succession as she alleges, I do not think that she has demonstrated that she has a prima facie case with probability of success. In any case she will not suffer irreparable injury which will not be compensated in damages. Already she has lodged a caution against the title held by the respondent. She is again free to pursue her interests in the succession cause if any was ever filed.
For the above reasons I find that the applicant's application is not well founded. The same is hereby dismissed with no order as to costs.
It is so ordered.
Dated, signed and delivered at Kitale on this 17th September, 2014.
E. OBAGA
JUDGE
COURT: Ruling delivered at 10. 25 a.m. in the absence of the applicant who was aware of today's date. Court Clerk – Kassachoon.
E. OBAGA
JUDGE
17/9/2014