[2010] KEHC 3155 (KLR)
The court found that the plaintiff, as the legal representative of the deceased and holder of the property in trust for her children, has a prima facie better claim to the disputed land than the defendant, who did not participate in the succession proceedings and has not obtained legal title. The court applied the...
Source-derived case information.
- Citation
- [2010] KEHC 3155 (KLR)
- Parties
- Plaintiff: Mary Njeri Kiarie; Defendant: Tafuta Development Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 626 of 2009
- Procedural Posture
- Environmental and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interlocutory injunction granted in favour of the plaintiff.
- Legal Topics
- Injunctive Relief, Land Ownership Disputes, Succession and Trusts, Transfer of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njeri Kiarie
Plaintiff
Tafuta Development Co. Ltd
Defendant
Procedural Posture
Environmental and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from further dealing with the suit property pending determination of the suit.
- 2 Whether the defendant has a valid claim to the property based on the alleged sale by the deceased.
- 3 Whether third parties and Githunguri Njiru Farm (1966) Ltd should be joined to the proceedings for effective determination.
Ratio Decidendi
The court found that the plaintiff, as the legal representative of the deceased and holder of the property in trust for her children, has a prima facie better claim to the disputed land than the defendant, who did not participate in the succession proceedings and has not obtained legal title. The court applied the principles in Giella v Cassman Brown & Co. Ltd, determining that the risk of irreparable loss to the plaintiff outweighed the defendant's interests. The court also noted that the interests of justice require preservation of the property until all parties, including third parties and Githunguri Njiru Farm (1966) Ltd, can be joined and the matter fully determined. Accordingly, the...
Court Disposition
Interlocutory injunction granted in favour of the plaintiff.
Orders
- The defendant, its agents, servants, and employees are restrained from further subdividing, selling, or disposing of the land and the plots until the suit is heard and determined.
- Costs to abide the suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Environmental & Land Case 626 of 2009
MARY NJERI KIARIE ……………………………………….PLAINTIFF
V E R S U S
TAFUTA DEVELOPMENT CO. LTD …………………..DEFENDANT
R U L I N G
Land Number 6845/154 situate at Utawala Estate in Nairobi is in the name of the deceased SAMUEL KIARIE KIRIMIRE who was the husband of the Plaintiff. Following his death the Plaintiff and her co-wife obtained joint letters of administration on 3rd January, 2002 which were confirmed on 23rd January, 2002 and the Plaintiff ordered to hold the in trust for her children.
The Defendant states that before the deceased died, on 10th September, 1992 he sold this land to one of its directors called STEPHEN MUTUA MBITHI who transferred it to the Defendant. The agreement is “SMMI”. The Defendant states that it has since subdivided the land into plots which have been sold to third parties. The land, it appears, had not been transferred from the deceased as the same is still in his name. The Plaintiff states that she was not aware of the alleged sale. The deceased was a shareholder of GITHUNGURI NJIRU FARM (1966) LTD who allocated the land to him. Title deed had not been processed. The Plaintiff is in the process of acquiring title. On the other hand, the Defendant is trying to process title to the persons it sold the plots to. It would appear that GITHUNGURI NJIRU FARM (1966) LTD are the present registered owners.
The Plaintiff sought a permanent injunction against the Defendant, its agents, servants and or employees from trespassing subdividing, disposing and/or interfering with the suit premises. She also sought their eviction. With the suit was filed a chamber application under Order 39 rules 1, 7and 9of the Civil Procedure Rules and section 3A of the Civil Procedure Act for interlocutory injunction. This is the application under consideration.
The parcel of land has been valued at KShs. 7. 5 million (“MNE 3”). The title is in the name of GITHUNGURI NJIRU FARM (1966) Ltd which allocated it to the deceased who was its shareholder. The Plaintiff has succeeded the deceased and the court has given her the land to hold in trust for her children. The Defendant says he bought it from the deceased. However, the land had not passed to him by the time the deceased died and he did not participate in the succession proceedings. The Defendant has subdivided the land and given plots to third parties. Those parties have no title. They can only get titles, if at all, through the Defendant.
It would appear that GITHUNGURI NJIRU FARM (1966) Ltd and these third parties will have to be joined into this dispute for the court to effectively determine all the issues in controversy. For the time being, I find, the Plaintiff has a prima facie better claim to the property in dispute. This is when one considers the principles enunciated in the case of GIELLA –VS- CASSMAN BROWN & CO. LTD [1973] EA 358. The other way of looking at this dispute is that the interests of justice will be better served by preserving the property that is already in the hands of the Defendant and persons it has sold to. Otherwise, the property may be further sold and thereby put the Plaintiff to irreparable loss. An order will therefore issue restraining the Defendant and all those acting under him from further subdividing, selling or disposing of the land and the plots until the suit is heard and determined. This order is made in the wide interest of justice. I ask that costs abide the suit.
DATED AND SIGNED AT NAIROBI
THIS 3RD DAY OF MAY 2010
A. O. MUCHELULE
J U D G E