[2014] KEHC 1204 (KLR)
The court found that the applicants failed to meet the threshold for the grant of an interlocutory injunction. The applicants did not provide evidence of Land Control Board consent, which is mandatory for transactions involving agricultural land. Only one applicant exhibited a sale agreement, and the other did not....
Source-derived case information.
- Citation
- [2014] KEHC 1204 (KLR)
- Parties
- Respondent: Nicholas Muthoka Ngundi; Applicant: Eliud Mwania Mbune; Applicant: Sulphice Nzonga Muia
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Appeal 798 of 2012
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Injunctive Relief, Land Sale Agreements, Land Control Board Consent, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Muthoka Ngundi
Respondent
Eliud Mwania Mbune
Applicant
Sulphice Nzonga Muia
Applicant
Procedural Posture
Succession Cause / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to an interlocutory injunction restraining the respondent from entering, working on, or erecting structures on Plot No. 147 – Mbiini/Maatha.
- 2 Whether the applicants have established a prima facie case for injunctive relief under the applicable legal standards.
- 3 Whether the applicants' interests as purchasers without Land Control Board consent are enforceable in the context of the deceased's estate.
Ratio Decidendi
The court found that the applicants failed to meet the threshold for the grant of an interlocutory injunction. The applicants did not provide evidence of Land Control Board consent, which is mandatory for transactions involving agricultural land. Only one applicant exhibited a sale agreement, and the other did not. The court held that, in the absence of the required statutory consent and proper documentation, the applicants' interests could be compensated by damages, and thus, they did not demonstrate irreparable harm. The legal requirements under the Law of Contract Act and Land Control Act were not satisfied, and the applicants' case did not meet the standards set out in Giella v...
Court Disposition
application dismissed
Orders
- The application for injunction is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 798 OF 2012
IN THE MATTER OF THE ESTATE OF JOSEPH NGUNDI NTHANGA (DECEASED)
NICHOLAS MUTHOKA NGUNDI ............... PETITIONER/RESPONDENT
VERSUS
ELIUD MWANIA MBUNE
SULPHICE NZONGA MUIA …………….OBJECTORS/APPLICANTS
R U L I N G
The application dated 2nd November 2012 seeks orders that pending the final hearing and determination of this application the Respondent/servants/agents or any person claiming under him be restrained by an injunction from entering into, working on or erecting any structures on the parcel of land on Plot No. 147 – Mbiini/Maatha.
Secondly, the Applicant prays that the OCS Sultan Hamud Police Station do assist in the enforcement of the said order.
According to the affidavit sworn by the 1st Appellant, Eliud Mwania Mbune and a further affidavit by the 2nd Applicant, Sulpice Nzonga Muia, they bought some 4 pieces of land from land parcel No. Mbitini/Maatha/147 from the deceased, Joseph Ngundi Nthanga. That the said vendor passed away in the year 1996 before he had transferred the purchased parcels of land to them. The Applicants’ complaint is that the Respondent has invaded their land and started putting up a structure therein. The Applicants have also complained about their not being included in the petition for the grant herein as liabilities in the estate of the deceased. The Respondents have further stated that the Applicants have also not managed to obtain the Land Control Board Consent.
In opposition to the application the Respondent filed a replying affidavit. It was averred by the Respondent that the land in question is family land and that the deceased was only registered as a trustee of the same. That after the death of the deceased the Applicant started laying claims on the land as purchasers. That the Respondent has no Land Control Board Consent. The Respondent further asserted that he is only renovating the building in question as the building has been there since the time he was born. It was further contended that if the Applicants are creditors, they should prove so.
The application was canvassed by way of written submissions which I have duly considered.
The 1st Applicant has exhibited a sale agreement. The 2nd Applicant has not exhibited any. Non of the Applicants have exhibited the consent of the Land Control Board.
Under section 3 (3) (a) of the Law of Contract Act Cap 23 Laws of Kenya:-
“the contract upon which the suit is founded –
is in writing;
is signed by all the parties thereto.”
Under section 6of the Land Control Act, Cap 302 Laws of Kenyathe Land Control Board’s Consent is required in all transactions involving Agricultural Land.
Prima facie, the Applicants can be compensated in monetary terms.
The Applicants’ case has not met the threshold for a grant of injunctive orders (See Giella –vs- Cassman Brown & Co. Ltd (1973) EA 358).
Consequently, the application fails. Costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 20thday of November 2014.
………………………………………
B. THURANIRA JADEN
JUDGE