[2024] KEHC 8894 (KLR)
The court found that the applicant had demonstrated a prima facie case as the property in question is matrimonial property and the registered owner is deceased. The applicant, as the wife and administrator of the estate, has beneficial rights under the Law of Succession Act. The respondent advertised the property...
Source-derived case information.
- Citation
- [2024] KEHC 8894 (KLR)
- Parties
- Plaintiff: Lawrence Mukwaiti M’Muthuro (Suing as the administrator of the Estate of M’Muthuro M’Riria (Deceased)); Defendant: Family Bank Limited; Defendant: Noren Auctioneers
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1 of 2024
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- Application allowed. Temporary injunction granted.
- Judges
- LW Gitari
- Legal Topics
- Interlocutory Injunctions, Matrimonial Property, Succession Rights, Public Auction, Irreparable Loss
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Mukwaiti M’Muthuro (Suing as the administrator of the Estate of M’Muthuro M’Riria (Deceased))
Plaintiff
Family Bank Limited
Defendant
Noren Auctioneers
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant the grant of a temporary injunction.
- 2 Whether the applicant stands to suffer irreparable loss 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 had demonstrated a prima facie case as the property in question is matrimonial property and the registered owner is deceased. The applicant, as the wife and administrator of the estate, has beneficial rights under the Law of Succession Act. The respondent advertised the property for sale by public auction without disclosing the reasons for the sale. The court held that if the property were sold, the applicant would suffer irreparable loss that could not be adequately compensated by damages. The balance of convenience favoured the applicant, as the respondent was not likely to suffer any loss if the injunction was granted. Therefore, the court exercised...
Court Disposition
Application allowed. Temporary injunction granted.
Orders
- A temporary injunction is issued restraining the respondents, their servants and/or agents from surveying, advertising, alienating, occupying, selling, transferring, disposing or interfering with the plaintiff’s rights, interests and quiet possession of Land Parcel No. Mwimbi/S.Mugumango/261 pending the hearing and...
- Costs shall be in the course.
Full Case Text
Judgment text and source record
21 paragraphs
M’Muthuro (Suing as the administrator of the Estate of M’Muthuro M’Riria (Deceased) v Family Bank Limited & another (Civil Case 1 of 2024) [2024] KEHC 8894 (KLR) (16 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8894 (KLR)
Republic of Kenya
In the High Court at Chuka
Civil Case 1 of 2024
LW Gitari, J
July 16, 2024
Between
Lawrence Mukwaiti M’Muthuro (Suing as the administrator of the Estate of M’Muthuro M’Riria (Deceased)
Plaintiff
and
Family Bank Limited
1st Defendant
Noren Auctioneers
2nd Defendant
Ruling
1. I have considered the application dated 20/5/2024 by way of Notice of Motion. The applicant seeks an order of interim order of injunction to conserve the property pending the hearing and determination of this suit. The court has discretion to order an injunction to be issued where it is shown that the property in dispute is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree. The court may in such circumstances issue an injunction pending the hearing and determination of the suit. See Order 40 rule 1- Civil Procedure Rules. The principles of granting of an injunction are well laid down in the case of Giella –v- Cassman Brown 1973 E.A 358.
2. These principles are as follows:-1. “The applicant must show a prima facie case with chances of success.2. An application will not normally be granted unless the applicant might otherwise suffer irreparable loss that cannot be adequately compensated by an award of damages.3. When the court is in doubt it will decide the application on the balance of convenience.”
3. The applicant has demonstrated that the respondent has advertised the sale of the suit properly by public auction. That the property is matrimonial property which is supposed to be inherited by the wife of the deceased and her children as the registered owner is deceased. If the property is sold the applicant is likely to suffer irreparable loss. The applicant is the deceased wife and has rights of a beneficial owner under the Law of Succession Act. She has also demonstrated that her husband is deceased and the respondent has failed to disclose the particulars showing the reason of the sale of the property through public auction. I find that if the defendant is not restrained from selling the land in dispute to 3rd parties the suit is likely to be overtaken by events and the applicant might in the process suffer irreparable loss. The respondent is not likely to suffer any loss, and so, the balance of convenience tilts in favour of the applicant.
4. I find that the application has merits. There shall be an order of temporary injunction restraining the respondent, their servants and/or agents from surveying, advertising, alienating, occupying, selling, transferring, disposing or interfering with the plaintiff’s rights, interests and quiet possession of Land Parcel No. Mwimbi/S.Mugumango /261 pending the hearing and determination of this suit or further orders of this court.Costs shall be in the course.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 16TH DAY OF JULY 2024. L.W. GITARIJUDGE16/7/2024