[2010] KEHC 2684 (KLR)
The court found that the plaintiff had established a prima facie case for the issuance of an inhibition order. The judge emphasized that Kenyan law does not discriminate between male and female children in matters of inheritance. The defendant's argument that only sons are entitled to inherit was rejected as...
Source-derived case information.
- Citation
- [2010] KEHC 2684 (KLR)
- Parties
- Plaintiff: Rose Ncorro M’Mwongera; Defendant: Geoffrey Muru M’Mwongera
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 123 of 2009
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Application allowed; inhibition order granted.
- Legal Topics
- Trusts Over Land, Succession and Inheritance, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Ncorro M’Mwongera
Plaintiff
Geoffrey Muru M’Mwongera
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the defendant holds 2 acres of parcel Kibirichia/1556 in trust for the plaintiff.
- 2 Whether an order of inhibition should issue to prevent dealings with the suit property pending determination of the suit.
- 3 Whether gender can be a basis for exclusion from inheritance under Kenyan law.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the issuance of an inhibition order. The judge emphasized that Kenyan law does not discriminate between male and female children in matters of inheritance. The defendant's argument that only sons are entitled to inherit was rejected as contrary to the law. The court held that, pending the final determination of the suit, it was just and equitable to preserve the status quo by issuing an inhibition to prevent any dealings with the disputed parcel of land. The application was therefore granted on the basis that the plaintiff's rights as a potential beneficiary should be protected until the substantive issues are...
Court Disposition
Application allowed; inhibition order granted.
Orders
- An inhibition is to be registered on parcel number Kibirichia/1556 until final determination of the suit.
- Costs of the Notice of Motion dated 10th September 2009 shall be in the cause.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Case 123 of 2009
ROSE NCORO M’MWONGERA ………………… PLAINTIFF
VERSUS
GEOFFREY MURU M’MWONGERA ………….. DEFENDANT
RULING
The plaintiff and the defendant are brother and sister.Their father was the owner of parcel number Kibirichia/1556. It is alleged by the plaintiff that before the death of their father he had allocated her 2 acres of that land to cultivate.She cultivated that land until the year 2006 when the defendant expelled her from the land.On making enquiry, she found that the defendant following a succession cause had registered the land in his name to her exclusion.By this action, she is seeking a declaration that the defendant holds 2 acres of that land in trust for her.She has filed an interlocutory application dated 10th September 2009 seeking an order of inhibition to issue to stop dealings with the suit property until the final determination of this suit.The application is brought under Section 28 of the Registered Land Act.The defendant in his replying affidavit denied that he filed the succession secretly and stated that the plaintiff knew about it.He then stated that because he was the only son of the deceased and because the plaintiff is a married daughter, he was the only one entitled to inherit that land.At this interlocutory stage, all I wish to say is that the law does not discriminate the rights of a girl to inherit as compared to the rights of the boy.I therefore find the application has merit and I grant the following orders:-
1. I order that inhibition do issue and be registered on parcel number Kibirichia/1556 until final determination of this suit.
2. Costs of the Notice of Motion dated 10th September 2009 shall be in the cause.
Dated and delivered at Meru this 21st day of May 2010.
MARY KASANGO
JUDGE