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ELCAllowedELC No. 828 of 2013· [2014] KEELC 373 (KLR)

Tundui Ole Saloi Nkilimo & another v Joyce Medukenya [2014] KEELC 373 (KLR)

High Court of Kenya
31 March 2014
LGL. Gacheru
2,261 words in judgment
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The bottom line

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A Kenyan High Court blocked a woman from collecting rent on a deceased man's properties because she could not prove she was his wife.

What this practically means

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Executive summary

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This ruling of the Environment and Land Division of the High Court at Nairobi (L. Gacheru, J) disposed of a Notice of Motion dated 7th July 2013 brought by the two plaintiffs under Order 40 Rules 1 and 4 of the Civil Procedure Rules, seeking to restrain the defendant from collecting rent on houses erected on LR Nos. Kajiado/Kaputei North 15054 and Kajiado/Kaputei North 210630, registered in the name of the late Joseph Kitole Solai, pending the hearing of the suit. The applicants, brother and daughter of the deceased, alleged the defendant was a stranger to the estate who had evicted the deceased's orphans and was fraudulently petitioning for letters of administration. The defendant claimed she was a lawful wife of the deceased under a will and relied on the rent for her livelihood. The court applied the Giella v Cassman Brown principles. It found the defendant had produced no evidence of her alleged marriage to the deceased, had previously sworn she was the third wife of Gideon Lorkenyoke Nareiyo in succession cause 1598/2010, had advertised the same estate in a separate succession cause, and had named the same child as a son of two different deceased men. Her status as widow was a disputed issue reserved for the Family Division in the succession cause. The applicants therefore established a prima facie case with probability of success, and the court declined to consider the other injunction principles. The application was allowed entirely with costs to the defendant.

Key legal issues

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01

Whether the applicants established a prima facie case with probability of success

Holding

Yes - the applicants established a prima facie case with probability of success because the respondent's claim to be a wife of the deceased is disputed and unproven, and her double petitioning for letters of administration in two succession causes raises a real dispute to be resolved in the Family Division

Reasoning

The court found the properties belonged to the deceased Joseph Kitole Solai. The respondent claimed to be his widow entitled to collect rent, but produced no evidence of the marriage and had previously sworn she was the third wife of Gideon Nareiyo in a separate succession cause. Her naming of Henry Lemaiyan as a son of two different deceased fathers undermined her credibility. The dispute over her status could only be resolved in the succession cause, so the applicants demonstrated an apparent infringement of their rights warranting the injunction.

p. 4
02

Whether the remaining Giella principles (irreparable injury, balance of convenience) required determination

Holding

No - having found a prima facie case, the court saw no reason to deal with the other principles

Reasoning

The court invoked the settled sequence of principles in Kibutiri v Kenya Shell and Giella v Cassman Brown, but on finding the first limb satisfied, declined to consider the remaining limbs.

p. 4

Legal principles established

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  • A prima facie case in a civil application includes but is not confined to a genuine and arguable case; it is a case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party.
  • The purpose of an injunctive order is to preserve the status quo or protect the suit property, and the discretion to grant it must be exercised judicially.

Court orders

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  1. 1.The Notice of Motion dated 7th July 2013 is allowed entirely
  2. 2.Permanent injunctive orders restraining the Defendant/Respondent, her agents, servants and/or employees from rent collection on the houses erected on land reference No. Kajiado/Kaputei North 15054 and Kajiado/Kaputei North 210630 pending the hearing and determination of the suit
  3. 3.Costs of the application to be borne by the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 40 Rule 4
  • High Court Practice RulesRule 3

Cases cited (4)

  • Sargent Vs Patel
    (1994)16 EACA 63
  • Kibutiri Vs Kenya Shell
    Nairobi High Court Civil Case No. 3398/1980 (1981) LR 390
  • Giella Vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd Vs First American Bank of Kenya and 2 others
    (2003) KLR 125
Jurisdiction invoked
Order 40 Rules 1 & 4 of the Civil Procedure Rules; Rule 3 of the High Court Practice Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tundui Ole Saloi Nkilimo & another v Joyce Medukenya [2014] KEELC 373 (KLR)", Case Analysis (2014). ELC No. 828 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/373/eng@2014-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.