[2015] KEELC 201 (KLR)
The court found that the applicant failed to provide medical evidence to support the claim that the deceased was incapacitated or that the transfer of the suit property was fraudulent. The applicant did not demonstrate the nature of the alleged irreparable loss, and the value of the land was quantifiable, making...
Source-derived case information.
- Citation
- [2015] KEELC 201 (KLR)
- Parties
- Applicant: Stella Nyakio Ngugi (suing as the administrator ad litem of the estate of Michael Rukunga Mowesley); Respondent: Samuel Osebe Kinanga; Respondent: The Registrar of Titles Mombasa; Respondent: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? Suit116 of 2014
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- AA Omollo
- Legal Topics
- Temporary Injunctions, Fraudulent Transfer of Land, Administration of Estates, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stella Nyakio Ngugi (suing as the administrator ad litem of the estate of Michael Rukunga Mowesley)
Applicant
Samuel Osebe Kinanga
Respondent
The Registrar of Titles Mombasa
Respondent
The Attorney General
Respondent
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has met the threshold for grant of a temporary injunction against the 1st defendant.
- 2 Whether the applicant has demonstrated a prima facie case with a probability of success.
- 3 Whether the applicant or beneficiaries will suffer irreparable loss if the injunction is not granted.
Ratio Decidendi
The court found that the applicant failed to provide medical evidence to support the claim that the deceased was incapacitated or that the transfer of the suit property was fraudulent. The applicant did not demonstrate the nature of the alleged irreparable loss, and the value of the land was quantifiable, making damages an adequate remedy. There was no evidence of prejudice or ongoing activities by the 1st defendant that would justify an injunction. The court held that the balance of convenience favoured maintaining the status quo, with the title remaining in the 1st defendant's name pending determination of the suit. Consequently, the application for a temporary injunction was dismissed...
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC CIVIL SUIT NO. 116 OF 2014
STELLA NYAKIO NGUGI (SUING AS THE ADMINISTRATOR AD LITEM OF
THE ESTATE OF MICHAEL RUKUNGA MOWESLEY) ….........PLAINTIFF/APPLICANT
VERSUS
SAMUEL OSEBE KINANGA
THE REGISTRAR OF TITLES MOMBASA
THE ATTORNEY GENERAL ….................................DEFENDANTS.RESPONDENTS
RULING
The applicant moved this Court by way of notice of motion brought under Order 40 and 50 rule 1 of the Civil Procedure Rules and section 1A and 3A of the Civil Procedure Act. In the motion, she asks this Court to grant the following orders;
1) Spent
2) That pending the hearing and determination of the main suit, the Court do grant an order of temporary injunction against the 1st defendant from interfering or dealing with the suit land whether by himself or though the servants and or employees.
The application is premised on five grounds listed on the face of it and the affidavit of Stella Nyakio Ngugi. The applicant deposes that she is the administrator of her husband's estate the late Michael Rukunga Mowesley. That the deceased was sick for a consecutive period of twenty (20) years before passing on on 16th February, 2014. She deposed further that the respondent took advantage of the sickness and obtained the title of the suit property plot No. Msa/Thathini 4/51. Lastly that being a widow, she is not well placed to engage in struggles with the defendants who are depriving her and the children their inheritance. She urged the Court to give an order canceling the offending entries in the registry and orders of temporary injunction against the 1st defendant.
The application is opposed by the 1st defendant to whom the orders sought are directed against. The 1st defendant deposed that he got information from his friends that Mr. Michael Rukunga – deceased wanted to sell his plot. He met the seller and they negotiated and agreed on the purchase price. The 1st respondent continued that a sale agreement was drawn and he annexed a copy. Further the 1st respondent deposes that the deceased availed all the documents for transfer and duly executed the transfer form. He denied the transfer was fraudulent and that the applicant has not shown that the late Michael Mowesley was of unsound mind. The 1st respondent also introduced two names Halima and Maria Teresa Mowesley whom he depones he was told are the wives of the late Michael. He urged the Court to dismiss the application for failing to meet the threshold of granting of injunctions.
This Court is tasked to determine whether the applicant has met any of the laid down principles before an order of injunction can issue. The applicant has deponed that the late Michael was sick for twenty years and therefore the 1st respondent took advantage of him. However no medical evidence was annexed to demonstrate this. The allegations of fraud can only be proved by laying of evidence and may not be easy to prove at an interlocutory stage. The applicant has pleaded that if the orders sought are not granted, the beneficiaries of the Estate of Michael will suffer irreparable loss. The nature of this loss is not explained. Further the value of this land is quantifiable therefore the applicant can get remedy in the event her suit succeeds against the defendants.
On the principle on whose favour convenience tilts, the applicant did not plead what she is doing on the land. There is no indication on what activities the 1st defendant is undertaking on the suit parcel that does prejudice her case. Further the Court cannot issue an order of cancellation of the 1st respondent's title at an interlocutory stage and without giving him a hearing. The balance of convenience I find to tilt in the title remaining in the name of the 1st respondent pending determination of the suit. In conclusion I find the application has not established any of the principles for this Court to grant the orders sought. It as lacking in merit and accordingly dismiss it but with no order as to costs.
Ruling signed, dated and delivered this 9th day of July, 2015.
…...................
A. OMOLLO
JUDGE
In the presence of:-
Learned Counsel for the Plaintiff …......................
Learned Counsel for the Respondent …..................
Court Assistant …...............................