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ELCAllowedNotice of Motion dated 26.5.2016 (suit not numbered in the judgment)· [2016] KEELC 96 (KLR)

Nabiswa Ongweko Nickson & another v Jenipher Nanyama Mabonga,& 3 others [2016] KEELC 96 (KLR)

Environment and Land Court
25 November 2016
1,551 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court stopped all dealings with a deceased person's land, protecting the estate until the case is fully heard.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Dismas Wafula Masakhwe, moved the court by Notice of Motion dated 26.5.2016 seeking an interlocutory injunction restraining the respondents from taking possession of, developing, subdividing, alienating or otherwise dealing with L.R. No. Soy/Soy Block 10 (Navillus)/534 pending determination of the suit. They claimed the land, though registered in the name of Kiyomegei Company Limited, was bought with extended family contributions to settle their matriarch Juliana Nekesa Masakhwe, and that after the deaths of the matriarch and of Dismas, the 1st and 2nd respondents demolished houses on the land and were arranging to alienate a purchasing interest to the 3rd respondent. The 1st respondent claimed to be the only widow of Dismas and asserted she had transferred her 0.6-acre purchasing interest to the 3rd respondent's father; the company's director confirmed the deceased's interest but stated no Land Control Board consent had been seen. Applying the Giella v Cassman Brown principles, the court found the plaintiffs, as legal representatives of the deceased, had capacity and a prima facie case, that the estate property was likely to be wasted and damages would not suffice, and that the balance of convenience favoured preserving the estate. The court granted the injunction sought pending the hearing and determination of the suit.

Key legal issues

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01

Prima facie case with probability of success

Holding

Plaintiffs as legal representatives of the deceased have capacity to sue and demonstrated a prima facie case

Reasoning

The court found the plaintiffs took out a grant of letters of administration over the estate of Dismas Wafula Masakhwe and thus had capacity to act for the estate. It further found that although the land was registered in the name of Kiyomegei Company Ltd, the deceased held a purchasing interest having bought it from Beatrice Khasoa Rotich, and the defendants' dealings amounted to alleged inter-meddling provable at trial.

p. 3
02

Irreparable harm

Holding

Injunction granted because estate property is likely to be wasted and damages would not compensate

Reasoning

The court reasoned that this being property of a deceased person, the administrators should be protected by injunction since the property is likely to be wasted if the respondents continue dealing with it. It held that no amount of damages would compensate the plaintiffs for such wastage should they succeed at trial.

p. 3
03

Balance of convenience

Holding

It tilts towards preserving the estate of the deceased person

Reasoning

The court found the balance of convenience favoured preservation of the estate pending trial, supporting the grant of the injunction restraining dealings with the suit parcel.

p. 3

Legal principles established

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  • An application for temporary injunction is determined on the principles in Giella v Cassman Brown: prima facie case, irreparable harm, balance of convenience

Court orders

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  1. 1.Order of injunction restraining the respondents from taking possession, developing, constructing, cultivating, subdividing, alienating, encumbering, disposing, transferring, charging or in any other manner dealing with the parcel of land known as L.R. No. Soy/Soy Block 10 (Navillus)/534 pending the hearing and determination of the suit
Jurisdiction invoked
Inherent jurisdiction of the High Court/Environment and Land Court to grant interlocutory injunctions (Giella v Cassman Brown principles)

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, "Nabiswa Ongweko Nickson & another v Jenipher Nanyama Mabonga,& 3 others [2016] KEELC 96 (KLR)", Case Analysis (2016). Notice of Motion dated 26.5.2016 (suit not numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/96/eng@2016-11-25

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