Eunice Lugatsiba Ambutsi v Nicholas Kibowen Kigen & 2 others [2016] KEELC 493 (KLR)
The bottom line
#A Kenyan court dismissed an administrator's attempt to stop land buyers, punishing her for hiding key facts and delaying three years before acting.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with probability of success for a temporary injunction
No - the applicant failed to disclose how the respondents entered the land, whether the grant had been confirmed, and concealed the second respondent's purchase from a co-administrator
The court applied the settled Giella principles. The applicant did not explain how the respondents entered the land nor state whether the grant to her and three others was confirmed. She concealed that the second respondent bought 5 acres from Joseph Makarios Masinjila, a co-administrator, and that other purchasers existed whom she did not sue, indicating ulterior motives and material non-disclosure.
Whether damages would be an adequate remedy and where the balance of convenience lies
Damages would adequately compensate the applicant, and the balance of convenience favours the second respondent who has been in possession since 2013
The second respondent bought 5 acres for KShs 1,425,000, built a house and ploughed the land since 2013. Any loss arising from an allegedly irregular sale by a co-administrator would be compensable in damages. The applicant waited almost three years after the respondent took possession, so even on balance of convenience no injunction could issue.
Legal principles established
#- The principles for grant of a temporary injunction: prima facie case with probability of success; inadequacy of damages; balance of convenience where in doubt
- A purchaser for value from one of several administrators of an estate, who takes possession, should not be prejudiced by lack of unanimity among the administrators
- Material non-disclosure on ex parte/injunctive applications disentitles an applicant of relief
Court orders
#- 1.The applicant's notice of motion dated 30/5/2016 is dismissed
- 2.Costs of the application awarded to the second respondent
- 3.The injunctive orders which had been given are discharged
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to grant temporary injunctions (no statutory provision expressly invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Lugatsiba Ambutsi v Nicholas Kibowen Kigen & 2 others [2016] KEELC 493 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/493/eng@2016-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.