David Kiplagat Kitur (Suing as the Administrator of the estate of Elijah Kimilgo Chumo alias Kimilgo Chumo-Deceased v Elizabeth Cheptonui Chumo & 2 others [2017] KEELC 2788 (KLR)
The bottom line
#The Environment and Land Court in Kericho refused to stop a disputed land sale, finding the estate's administrator hadn't shown his claim would likely succeed at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant met the Giella v Cassman Brown principles for an interim injunction
The applicant failed to establish a prima facie case with a probability of success and did not demonstrate irreparable loss or that the balance of convenience favoured him; the application was dismissed.
Although the applicant alleged fraudulent sub-division and sale of the deceased's land without beneficiaries' consent, the 1st respondent produced documents showing consent to sub-divide was obtained by the deceased in his lifetime on 20th May 1997. Documentary evidence also showed the applicant himself transferred one of the titles derived from the suit parcel to the Catholic Diocese of Kericho. With both sides appearing to have benefited from the estate, the truth could only emerge at trial after cross-examination.
Legal principles established
#- An applicant for an interlocutory injunction must show a prima facie case with a probability of success, irreparable injury which cannot be compensated by damages, and where the court is in doubt, the balance of convenience
- Where the documentary evidence reveals conflicting claims and both parties appear to have benefited from the estate, interlocutory injunctive relief should be declined pending full trial
Court orders
#- 1.The Notice of Motion dated 30th June 2016 is dismissed with costs
- 2.Parties to comply with Order 11 of the Civil Procedure Rules within 30 days so the case can be set down for hearing
- Jurisdiction invoked
- Order 40 Rules 1 and 2, Order 50 Rule 1 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiplagat Kitur (Suing as the Administrator of the estate of Elijah Kimilgo Chumo alias Kimilgo Chumo-Deceased v Elizabeth Cheptonui Chumo & 2 others [2017] KEELC 2788 (KLR)", Case Analysis (2017). ELC Case No. 43 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2788/eng@2017-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.