Philip Chepkwony v Benjamin Tarus & 4 others [2017] KEELC 2860 (KLR)
The bottom line
#An Eldoret court preserved family land from transfer until a succession case is decided, even though it doubted the son's underlying claim.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case with probability of success
Plaintiff failed to establish a prima facie case; the will and pending succession cause were not countered and the land is unadministered
The defendants annexed a will naming the plaintiff as beneficiary and appointed executors of whom he is not one. There is a pending Succession Cause No. 29 of 2016 over the same estate. The plaintiff did not respond to the succession cause claim or the will. Title remains in the deceased's name and the estate has not been administered, making it difficult to conclude conclusively that a prima facie case exists.
Adequacy of damages
Any injury is compensable in damages as land value and lease amounts are ascertainable
The plaintiff deponed that the defendants leased or sold part of the suit property, but the court found the value of the land and lease amounts could be ascertained by a valuer, so damages would be an adequate remedy, applying the Wairimu Mureithi principle that no injunction should issue where common law damages suffice.
Balance of convenience
Balance of convenience tilts in favour of the plaintiff, warranting preservation of the suit land
Despite failing on the first two limbs of the Giella test, the court found the balance of convenience favoured the plaintiff, who sought preservation of suit land that is the subject of a pending succession cause, and granted a temporary injunction until the suit is determined.
Locus standi of the plaintiff
Challenges to the limited grant ad litem should be raised in the granting court; the plaintiff has authority to sue
The defendants contended the plaintiff lacked locus as he was not an executor and allegedly concealed material facts from the magistrate who granted the limited grant. The court held such issues belonged in that court and that, as of now, the plaintiff holds authority to bring the suit before the ELC.
Legal principles established
#- No injunction should be granted where damages are an adequate remedy, however strong the plaintiff's case appears at the interlocutory stage
- Issues concerning a deceased's estate must be determined in a succession cause, not in a separate suit
- Where a limited grant ad litem has been issued, challenges to the grantee's locus standi should be raised in the court that granted it
Court orders
#- 1.A temporary injunction restraining the defendants jointly and severally, their servants, agents and/or assigns from dealing with, leasing out, trespassing, encroaching, transferring or interfering with Moi's Bridge/Moi's Bridge Block 3 (Moogon) Plot 2 until the suit is heard and determined
- 2.The issues in respect of the Estate of Malakwen Tarus to be determined in a Succession Cause
- 3.Costs of the application in the cause
- Jurisdiction invoked
- Jurisdiction over the suit upheld in a prior ruling dismissing a preliminary objection; interim relief sought under Order 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Chepkwony v Benjamin Tarus & 4 others [2017] KEELC 2860 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2860/eng@2017-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.