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ELCDismissedELC Case No. 43 of 2016· [2017] KEELC 2788 (KLR)

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)

Environment and Land Court
31 May 2017
776 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho on the plaintiff's Notice of Motion dated 30th June 2016 seeking an interim injunction restraining the 2nd defendant from occupying, ploughing, leasing, transferring, disposing of, charging, developing or alienating land parcel KERICHO/KIMULOT/502, and from plucking tea thereon, pending the hearing of the suit. The plaintiff, administrator of the estate of Elijah Kimilgo Chumo, alleged that the 1st defendant, a widow of the deceased, fraudulently sub-divided and sold part of the deceased's land to the 2nd defendant in collusion with the 3rd defendant without the consent of the estate's beneficiaries, dispossessing the applicant and other beneficiaries and rendering them landless. Applying the principles in Giella v Cassman Brown, the court found that the applicant had not demonstrated a prima facie case with a probability of success: the 1st respondent attached documents showing consent to sub-divide was obtained by the deceased during his lifetime on 20th May 1997, and further documentary evidence showed the applicant himself transferred one of the resultant titles, parcel KERICHO/KIMULOT/1447, to the Catholic Diocese of Kericho. Noting that both parties appeared to have benefited from the estate and that the truth would emerge only at trial, the court held the applicant had not shown irreparable loss and the balance of convenience did not favour him. The application was dismissed with costs, and the parties were directed to comply with Order 11 within 30 days to expedite the hearing of the main suit.

Key legal issues

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01

Whether the applicant met the Giella v Cassman Brown principles for an interim injunction

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 30th June 2016 is dismissed with costs
  2. 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

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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, "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.