[2015] KEELC 677 (KLR)
The court found that the applicant's late brother, Peter Magaya John, was entitled to a portion of the deceased's land and validly sold his share to the respondent before his death. The sale was not contested by the family of the late Peter Magaya John, and the respondent took possession in accordance with the sale...
Source-derived case information.
- Citation
- [2015] KEELC 677 (KLR)
- Parties
- Applicant: Nelson Mutemi; Respondent: Peter Wanyama Ngaira
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 157 of 2014
- Procedural Posture
- Land Case / Ruling on Application for Injunction
- Outcome
- application dismissed
- Legal Topics
- Beneficial Ownership, Sale of Land, Injunctions, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Mutemi
Applicant
Peter Wanyama Ngaira
Respondent
Procedural Posture
Land Case / Ruling on Application for Injunction
Legal Issues
- 1 Whether the sale agreement between the respondent and the applicant's late brother Peter Magaya John is null and void.
- 2 Whether the applicant is entitled to a permanent injunction restraining the respondent from interfering with plot No. 40 at Nalulingo Farm.
- 3 Whether the applicant has established a prima facie case with a probability of success.
Ratio Decidendi
The court found that the applicant's late brother, Peter Magaya John, was entitled to a portion of the deceased's land and validly sold his share to the respondent before his death. The sale was not contested by the family of the late Peter Magaya John, and the respondent took possession in accordance with the sale agreement. The applicant failed to demonstrate a prima facie case with a probability of success or that he would suffer irreparable injury if the injunction was not granted. The court held that the applicant had no basis to nullify the agreement or restrain the respondent from occupying the land, as the transaction was valid and supported by the relevant parties.
Court Disposition
application dismissed
Orders
- The application for a permanent injunction is dismissed.
- The applicant's prayer to declare the sale agreement null and void is denied.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA.
IN THE ENVIRONMENT & LAND COURT AT KITALE.
LAND CASE NO. 157 OF 2014.
NELSON MUTEMI ………………………….........................………………..APPELLANT/APPLICANT
VERSUS
PETER WANYAMA NGAIRA……………………………………………………………...RESPONDENT
The applicant is the legal representative of the estate of the late John Anyera who died on 15/2/2013 (deceased). The deceased is the father of the applicant as well as one Peter Magaya John who is also deceased. The deceased was a beneficial owner of plot No. 40 at Nalulingo Farm which plot was yet to be registered in the deceased's name as at the time he died.
The applicant contends that the respondent started claiming part of the deceased's land in 2014 on grounds that he purchased the same from his late brother Peter Magaya John. The applicant contends that Peter Magaya John had no land to sell to the respondent and that what the respondent is doing is to intermeddle on the property of a deceased whose estate has not been distributed.
I have carefully gone through the applicant's application as well as the opposition to the same by the respondent. In the plaint the applicant is seeking a declaration that the agreement between the respondent and his late brother Peter Magaya John be declared null and void. He is also seeking a permanent injunction against the respondent from interfering with plot No. 40 at Nalulingo Farm.
In the present case, the respondent bought land from the applicant's brother in 2012. The respondent took possession in December, 2012 as per the sale agreement. The respondent planted maize which the applicant destroyed leading to the applicant being charged in a criminal case. There is a letter from the local chief confirming that the land in issue belongs to the respondent. The applicant is not contesting the fact that the respondent bought the land from his late brother. What he seems to contest is the legality of that sale. The deceased's land had been sub-divided and each family member shown his or her portion. This was done before the deceased died. The deceased brother to the applicant sold his portion before the deceased died. The deceased brother of the applicant was entitled to a portion of his father's land. If he decided to sell his portion, the applicant should not interfere with the same. Let the applicant have the grant confirmed and distribute the rest of the land to the other beneficiaries. The family of Peter Magaya John is not disputing the sale to the respondent. I do not see how the applicant will succeed in nullifying the agreement between the respondent and the late Peter Magaya John who left a surviving widow who is supporting the sale and who is entitled to the land due to her late husband. I find that the applicant has failed to show that he has a prima facie case with probability of success. I do not also see what irreparable injury he will suffer if the injunction is not granted.
It is so ordered.
E. OBAGA.
In the presence of M/s. Arunga for applicant.
E. OBAGA.
28/1/2015.