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ELCAllowedNotice of Motion dated 13th October, 2016 (suit particulars not stated in the judgment)· [2017] KEELC 204 (KLR)

William Obonyo v Publlic Trustee & another [2017] KEELC 204 (KLR)

Environment and Land Court / High Court of Kenya at Mombasa (court not expressly named in the judgment)
23 November 2017
LKL. Komingoi
1,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court blocked the sale or interference with two inherited plots, protecting a deceased man's estate and his family's income.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's Notice of Motion dated 13th October 2016 seeking a temporary injunction restraining the Defendants from transferring, disposing of, interfering with or meddling with Plots 3/8 and 5/8 Chaani pending the hearing of the suit. The application was brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rule 1 and Order 51 of the Civil Procedure Rules, 2010, supported by the affidavit of William Obonyo, son and beneficiary of the late Gilbert Obonyo Nyagol, the alleged owner of the plots under a 1985 letter of offer from the Housing and Development Department. The Defendants, represented by the Assistant Public Trustee, opposed the application, contending that the Plaintiff and the deceased's estate had no protectable right, that the Defendants were in possession and clearing rate arrears, and that the 2nd Defendant was wrongly sued. The Defendants relied on a letter of confirmation of ownership from the County Government of Mombasa which was not annexed, and filed no statement of defence. Applying the Giella v Cassman Brown principles and the Mrao Ltd definition of a prima facie case, Komingoi J found the Plaintiff had established a prima facie case with probability of success, irreparable injury (loss of income for beneficiaries' school fees) and that the balance of convenience favoured him. The court granted the injunction until hearing and determination of the suit, with costs of the application in the cause, and advised the Plaintiff to obtain letters of administration intestate. The ruling was delivered at Mombasa on 23rd November 2017.

Key legal issues

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01

Whether the Plaintiff met the threshold for a temporary injunction over Plots 3/8 and 5/8 Chaani

Holding

Yes - the Plaintiff established a prima facie case with probability of success, irreparable injury, and balance of convenience in his favour.

Reasoning

The Plaintiff attached a letter of offer dated 15th April 1985 from the Housing and Development Department addressed to the deceased, showing how the deceased acquired the plots, and evidence that he is a beneficiary of the estate. The Defendants, though relying on a letter of confirmation of ownership from the County Government of Mombasa, did not annex it to their affidavit, filed no statement of defence, and did not explain how Enos Mito Obonyo acquired the property. Irreparable injury was shown since school fees for beneficiaries depended on the estate income.

p. 3
02

Preservation of the deceased's estate pending full hearing

Holding

The court found it necessary in the interest of justice to preserve the estate of the deceased Gilbert Obonyo Nyagol.

Reasoning

The Plaintiff, a beneficiary caring for other beneficiaries, had not obtained letters of administration intestate. The court advised him to regularize this position but nonetheless found preservation of the estate necessary in the interim, granting the injunction until hearing and determination of the suit.

p. 3

Legal principles established

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  • A prima facie case in civil matters is one in which, on the material presented, a tribunal properly directing itself would conclude there exists a right apparently infringed so as to call for an explanation from the opposite party.
  • The Giella v Cassman Brown conditions govern the grant of temporary injunctions.

Court orders

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  1. 1.A temporary injunction restraining the Defendants by themselves, their agents, servants, and/or any other person acting on their instructions from trespassing, disposing, interfering and/or meddling with all that is plot Numbers 3/8 and 5/8 Chaani until the hearing and determination of this suit.
  2. 2.Costs of the application to be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 40 Rule 1; Order 51

Cases cited (4)

  • Giella versus Cassman Brown And Company Limited
    (1973) EA 358
  • Punda Milia Cooperative Society versus Savings And Loan (K) Limited
    (2009) eKLR
  • Nguruman Limited versus Jan Bonde Nielsen And 2 Others
    (2014) eKLR
  • Mrao Limited versus First American Bank Limited And 2 Others
    (2013) KLR 125
Jurisdiction invoked
Sections 1A, 1B, 3A, 63(e) of the Civil Procedure Act and Order 40 Rule 1, Order 51 of the Civil Procedure Rules, 2010

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, "William Obonyo v Publlic Trustee & another [2017] KEELC 204 (KLR)", Case Analysis (2017). Notice of Motion dated 13th October, 2016 (suit particulars not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/204/eng@2017-11-23

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