https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5133

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELC SUIT NO. E005 OF 2026** **HERMAN KARIUKI WAMBUGU (suing as the administrator ad litem to the estate of Simon Wambugu Taiti-Deceased). ………………………………………PLAINTIFF/APPLICANT** **VERSUS** **CATHERINE KARIMI WAMBUGU…………………………………...1ST DEFENDANT/RESPONDENT** **LAND REGISTRAR, NYERI …….2ND DEFENDANT/RESPONDENT** **LAND REGISTRAR MERU……… 3RD DEFENDANT/RESPONDENT** **RULING** 1. This application, dated February 11, 2026, seeks injunctive and/or inhibitory orders brought by the Applicant, in his capacity as administrator *ad litem* of the estate of the late Simon Wambugu Taiti (Deceased), to restrain further unlawful dealing with and the imminent dissipation of the estate's property pending the hearing and determination of this suit. The application is supported by the annexed affidavit deposed to on February 11, 2026, and a further affidavit deposed to on March 1, 2026. 2. The application is opposed; the Respondent has deposed a replying affidavit dated 11th March 2026. The Court instructed the parties to submit written briefs. I acknowledge receipt of submissions from the counsel representing the Applicant. The 1st Respondent submitted a replying affidavit, whereas the 2nd and 3rd Respondents did not submit any responses to the application. 3. Based on the materials before me, the issues I frame for this Court's determination are whether the Applicant is entitled to the reliefs sought in the application, including the grant of inhibitory orders and an interlocutory injunction, and who should bear costs. 4. The Applicant affirms that the factual circumstances are largely uncontested. It is generally accepted that the First Respondent was appointed guardian and manager of the Deceased's affairs during his lifetime pursuant to the Mental Health Act. Additionally, it is uncontested that the Deceased passed away on 5th May 2025, thereby terminating that mandate by operation of law. 5. He contends that the dispute stems from what followed thereafter. The Applicant's case, as set out in the pleadings and supporting affidavit, is that despite the lapse of her authority, the 1st Respondent transferred multiple estate properties into her own name without lawful authority, without Court sanction, and in clear breach of her fiduciary obligations. 6. Furthermore, the 1st Respondent endeavors to justify her actions by asserting that she allegedly acted in accordance with lawful court orders and that the transfer procedures had been commenced during the Deceased's lifetime. 7. However, upon closer examination of the Replying Affidavit, that defense collapses both factually and legally. Firstly, regarding parcel number Aguthi/Gatitu/2356, the 1st Respondent explicitly admits that the transfer was completed after the Deceased's death and has not submitted any evidence to this Honourable Court demonstrating that the transfer instruments were executed or lodged prior to the Deceased's demise. 8. Secondly, regarding Mahiga/Munyange/549 and Mahiga/Munyange/694, the 1st Respondent contends that purported court orders are conferring special powers; however, the Applicant has provided evidence to the Court indicating that no such authentic orders are in existence, thereby raising significant concerns of fraud and illegality. 9. According to the Applicant, the net effect is that what is presented as a lawful exercise of authority is, in substance, a series of post-death dealings, unsupported by valid court sanction and undertaken in circumstances amounting to self-dealing, intermeddling, and abuse of a fiduciary position. 10. Against this background, the Applicant petitions this Honourable Court for urgent intervention to safeguard the suit properties, considering the demonstrated and imminent risk of alienation to 3rd parties, which would undermine the core of the suit and render the proceedings futile. 11. Conversely, in her Reply Affidavit, the 1st Respondent asserts that it is true that during his lifetime, her late husband had dementia. This medical condition rendered him incapable of managing his affairs and estate. 12. As a result, she moved the High Court in **Milimani Misc. Cause No. 117 of 2021**, where she was lawfully appointed guardian and manager of the person and estate of the deceased on 17th August 2021. 13. Subsequently, the High Court issued specific orders on June 30, 2022, pursuant to Sections 26-29 of the Mental Health Act, granting her special powers to deal with certain properties belonging to the deceased. The first set of orders expressly authorized her to mortgage, charge, transfer, sell, gift, execute conveyances, or otherwise deal with the following properties: Title No. Aguthi/Gatitu/2356 and Title No. Aguthi/Gatitu/667/149. Pursuant to that lawful court authority, she initiated the transfer of the above properties for the proper management and protection of the estate. The transfer processes were lawfully initiated during the deceased's lifetime and pursuant to the express authority of the Court—the transfer of Title No. Aguthi/Gatitu/667/149 was completed before the deceased's death—the transfer of Title No. Aguthi/Gatitu/2356 was finalized shortly after the deceased's death due to administrative procedures within the Lands Registry that were outside her control. 14. She affirms that once a legitimate transfer process has been initiated in accordance with a valid court order, the subsequent administrative completion of the registration procedure by the Lands Registry is solely procedural. 15. She asserts that throughout all relevant times, she acted solely within the authority granted by the High Court and in good faith to manage and safeguard the estate. The Applicant's effort to question actions performed under a lawful court order constitutes an improper indirect challenge to orders made by a competent court. If the Applicant disagreed with those orders, the correct procedure would have been to dispute or seek to overturn them in the court that issued them, rather than through this Application. 16. She further asserts that, concerning Mahiga/Munyange/549 and Mahiga/Munyange/694, she was likewise authorized with special permission to manage the aforementioned properties, contrary to the Applicant's claims, as evidenced by the annexed orders marked "CWK-1". 17. 1st Respondent states that the Applicant has deliberately failed to disclose the existence and effect of the court order and has therefore approached this Honorable Court without full and frank disclosure of material facts. The Applicant's allegation that no such authority existed is therefore false and misleading. 18. With respect to Ontulili/Ontulili Block 1 (Katheri) 864, the transfer was also lawful and in accordance with all applicable legal procedures. The allegations of fraud made by the Applicant are baseless and unsupported by any evidence. Although the Applicant states that he lodged a complaint with the Directorate of Criminal Investigations, no charges or adverse findings have resulted. The Applicant has therefore resorted to these proceedings in an attempt to create a dispute where none exists. 19. She confirmed that the Applicant has alleged that the properties are in imminent danger of being sold, an allegation that is speculative and unsupported by any evidence. The properties remain secure, and no imminent or irreversible harm would warrant the drastic orders sought by the Applicant. 20. She asserts that an Applicant seeking injunctive relief must fulfill the well-established legal principles. The Applicant has failed to establish a *prima facie* case because the actions in question were carried out under lawful court authority. Furthermore, the Applicant has not demonstrated that he would suffer irreparable harm that cannot be adequately compensated by damages, especially considering that the dispute involves registered land and claimed family interests. In any case, the balance of convenience favors preserving the *status quo* of the lawful titles already issued by court orders. Therefore, the application is frivolous, vexatious, and constitutes an abuse of the court process; it is in the interest of justice that the Applicant’s application be dismissed with costs. 21. In Kenyan jurisprudence, courts have refined the criteria for granting prohibitory orders, including inhibitions and prohibitory injunctions, in land transactions through several landmark cases. In **Luka Ruteere & 2 others v. Marcella Kinaitore Mwimbi [2022] KEELC 990 (KLR).** The Environment and Land Court (ELC) determined that an inhibition pursuant to Section 68 of the Land Registration Act is fundamentally analogous to a prohibitory injunction. It serves to prevent the registered owner from exercising their rights to property as protected under Article 40 of the Constitution. Consequently, the court must be convincingly assured that there exist exceptional and substantial grounds to justify such a stringent restriction. 22. In **Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation Limited & 6 others [2015] eKLR,** the court noted that an order of inhibition, which restricts a proprietor from dealing with their land, serves as a property preservation mechanism pending trial. The applicant must establish a clear nexus between the suit and the specific land to justify freezing the registry. 23. In **Philip Mwangi Githinji v Grace Wakarima Githinji [2004] eKLR**, cited with approval in **Miriti & another v Kalayu [2023] KEHC 26632**, the High Court held that before an order preventing land transactions is issued, the Applicant must show substantial grounds. These grounds should typically constitute a sustainable and triable claim regarding the land in question. A mere allegation, without a prima facie case, is not adequate. 24. Because inhibitions function as interlocutory prohibitory injunctions, courts apply the classic three-pillar test from the landmark case **Giella v Cassman Brown & Co. Ltd [1973] EA 358**. See **Mburu v. Kibara & 2 others [2022] KEELC 3226**. Under Order 40 Rule 1 of the Civil Procedure Rules, the court confirmed that a prohibitory order or temporary injunction will be granted if the Applicant proves that the land in dispute is in active danger of being wasted, damaged, alienated, or wrongfully sold by any party to the suit. 25. Can an inhibition and interlocutory injunction issue under the circumstances in this matter? 26. From the record, it is not disputed that the properties in contention were transferred pursuant to orders of the Superior Court (the High Court - **Milimani Misc. Cause No. 117 of 2021** - where she was appointed guardian of the deceased husband due to infirmity of mind, and later permitted to transfer some of the properties into her name to take care of the deceased husband during his hospitalization and for her upkeep as a dependent. 27. The gravamen in this matter is that the transfers occurred well after the deceased husband's death and that not all the properties were to be transferred to her name, hence intermeddling. 28. Whereas some of the properties were transferred after the deceased's death, the orders for transfer were in place. I will agree with the 1st Respondent that this Court cannot purport to sit as an Appellate Court and to review orders issued by the High Court. The best the Applicant could have done was to approach the High Court and register his reservations concerning the transfers post the deceased's death. 29. Concerning the transfer of certain properties without the appropriate legal court orders, it is within the jurisdiction of the High Court (sitting as a Probate and Succession Court) to address issues of intermeddling pursuant to Sections 45 and 47 of the Law of Succession Act. Conversely, the Environment and Land Court (ELC) oversees disputes related to absolute land title ownership involving third parties. 30. In the present case, there are no third parties involved; instead, the matter concerns a mother and son who are expected to resolve the succession issue within the Probate and Succession Court. As affirmed in **Re Estate of Benson Maingi Mulwa (Deceased) [2021] eKLR**, any interested party may petition the probate court for preservation orders and measures against intermeddling. 31. Furthermore, as indicated in **Re Estate of** **M'Ngarithi M'Miriti (Deceased) [2017] eKLR,** the succession court is endowed with extensive powers under Sections 45 and 47 to nullify unauthorized transactions and safeguard estate assets. 32. Lastly, **Re Estate of Wahome (Deceased) [2026] KEHC 3356** clarifies that the probate court addresses claims concerning internal estate interference by beneficiaries or unauthorized sales. In contrast, claims by bona fide third-party purchasers asserting independent ownership rights are within the jurisdiction of the ELC. 33. Guided by the foregoing, I see no merit in the application dated February 11, 2026; it is dismissed with no orders as to costs. **Dated, signed, and delivered electronically in Nyeri on this 22nd day of July, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Amanya for the 1st Defendant/Respondent** **Denis: Court Assistant** **In the absence of:** **Mr. Ndichu for the Plaintiff/Applicant** **The Honorable the AG for the 2nd and 3rd Defendants/Respondents**