[2011] KEHC 1336 (KLR)
The court found that the applicant had established a prima facie case by demonstrating her status as administrator of the estate of the deceased original owner, Rebecca Wambui Kamau. The court noted that the documents purporting to transfer the property after the death of the original owner were suspect, casting...
Source-derived case information.
- Citation
- [2011] KEHC 1336 (KLR)
- Parties
- Plaintiff: Peninah Watiri Wachira; Defendant: Jane Wairimu Ngugi; Defendant: Muriithi Mahiu Nguru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 191 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted
- Legal Topics
- Interlocutory Injunction, Ownership Dispute, Trust Property, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peninah Watiri Wachira
Plaintiff
Jane Wairimu Ngugi
Defendant
Muriithi Mahiu Nguru
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for the grant of an interlocutory injunction pending determination of the suit.
- 2 Whether the sale and transfer of Plot No. B1717 Phase II Dandora was valid given the alleged death of the original owner.
- 3 Whether the 2nd respondent acquired valid title to the suit property.
Ratio Decidendi
The court found that the applicant had established a prima facie case by demonstrating her status as administrator of the estate of the deceased original owner, Rebecca Wambui Kamau. The court noted that the documents purporting to transfer the property after the death of the original owner were suspect, casting doubt on the validity of the sale and transfer to the respondents. Given these circumstances, the court held that it was appropriate to preserve the suit property by granting an interlocutory injunction restraining the respondents from interfering with the property pending the determination of the suit.
Court Disposition
interlocutory injunction granted
Orders
- An interlocutory injunction is issued restraining the 1st and 2nd respondents, their agents or servants from trespassing, alienating, disposing, transferring, letting, claiming ownership or in any way interfering with Plot No. B1717 Phase II Dandora pending the hearing and determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE (ELC)NO. 191 OF 2010
PENINAH WATIRI WACHIRA............................................................................................PLAINTIFF
VERSUS
JANE WAIRIMU NGUGI & ANOTHER..........................................................................DEFENDANT
RULING
Peninah Watiri Wachira hereafter referred to as the applicant has filed a suit against Jane Wairimu Ngugi and Muriithi Mahiu Nguru herein after referred to as the 1st and 2nd respondent. The applicant seeks judgment against the respondents jointly and severally for:
a)A declaration that the sale of plot No. B1717 Phase II Dandora between Muriithi Wamahiu Ngugi and Jane Wairimu is null and void, and the aforesaid sale be cancelled.
b)A permanent injunction restraining the 1st and 2nd defendants by themselves, agents and servants and whosoever trespassing, altering, selling, transferring, letting, claiming ownership and or any way interfering with Plot No. B1717 Phase II Dandora, Nairobi.
c)Costs of the suit.
The applicant now seeks an order of interlocutory injunction restraining the 1st and 2nd respondents by themselves, servants, agents or whoever from trespassing alienating, disposing transferring, letting, claiming ownership and or in anyway interfering with plot No. B1717 Phase II Dandora, pending the inter-parte hearing and determination of this suit.
In support of the application the applicant has sworn an affidavit explaining that the suit property belongs to her deceased mother, and that the applicant is the administrator of the deceased’s estate. Although duly served with the application the 1st respondent did not file any response to the application nor did she attend court for the hearing of the application. The 2nd respondent filed a replying affidavit in which he maintained that he bought the suit property from the 1st respondent with full knowledge of the applicant. He claimed that he was given possession of the suit property on 26th October 2009 and is thus not a trespasser.
Upon considering the application and the submissions of both counsel, I find that the applicant has provided prima facie evidence showing that she is the administrator of the estate of the late Rebecca Wambui Kamau who died on 29th December 1992, and that as per the certificate of confirmation of grant which was issued on 29th April 1994, the deceased’s property identified as Plot No. B1717 Dandora Estate was to be registered in the name of the applicant and 1st respondent to hold in trust for the deceased’s children.
The documents availed to the court show that the suit property was allegedly sold to the 1st respondent by Rebecca Wambui on 15th February 2005, and that Rebecca Wambui signed a power of attorney on 29th May 2009 in favour of the 1st respondent in respect of the suit property. These transactions are suspect given that Rebecca Wambui Kamau who was the original owner of the suit property is deceased.
I am satisfied that the applicant has established a prima facie case with regard to the propriety of the 1st respondent’s right to transfer any proper title to the 2nd defendant with regard to the suit property.
Accordingly it is appropriate that the suit property which is the subject matter of the applicant’s suit, should be preserved. I therefore allow the chamber summons dated 26th April 2010 and issue an order of interlocutory injunction in terms of prayer (1). Costs shall be in the cause.
Dated and delivered this 29th day of July, 2010.
H. M. OKWENGU
JUDGE
In the presence of: -
Wachira for the plaintiff/applicant
Advocate for the defendant/respondent absent
Eric Court clerk