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ELCPartially AllowedNot stated in judgment· [2017] KEELC 2860 (KLR)

Philip Chepkwony v Benjamin Tarus & 4 others [2017] KEELC 2860 (KLR)

Environment and Land Court
5 April 2017
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M.A. Odeny, J) on the plaintiff's Notice of Motion dated 14th April 2016 seeking temporary and permanent injunctions restraining the defendants from dealing with, leasing, encroaching on or transferring Moi's Bridge/Moi's Bridge Block 3 (Moogon) Plot 2, being land forming part of the estate of Tarus Malakwen Kimugu, who died on 15th August 2014. The plaintiff, a son of the deceased holding letters of administration ad litem, alleged the 1st to 3rd defendants leased 34 acres to the 4th and 5th defendants without family consent. The defendants had earlier lost a preliminary objection on jurisdiction and maintained there was a pending Succession Cause No. 29 of 2016 and a will naming the plaintiff as a beneficiary. The court framed the three Giella questions. It found no evidence of a prima facie case: the will was unchallenged, executors were appointed, title remained in the deceased's name and the succession cause was pending; it also held damages would adequately compensate the plaintiff since land and lease values are ascertainable, applying Wairimu Mureithi v City Council of Nairobi. However, the balance of convenience tilted in the plaintiff's favour, and the court granted a temporary injunction until the suit is determined, directed that the estate issues be determined in a Succession Cause, and ordered costs in the cause. The ruling was delivered at Eldoret on 5th April 2017.

Key legal issues

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01

Prima facie case with probability of success

Holding

Plaintiff failed to establish a prima facie case; the will and pending succession cause were not countered and the land is unadministered

Reasoning

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.

p. 3
02

Adequacy of damages

Holding

Any injury is compensable in damages as land value and lease amounts are ascertainable

Reasoning

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.

p. 3
03

Balance of convenience

Holding

Balance of convenience tilts in favour of the plaintiff, warranting preservation of the suit land

Reasoning

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.

p. 4
04

Locus standi of the plaintiff

Holding

Challenges to the limited grant ad litem should be raised in the granting court; the plaintiff has authority to sue

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The issues in respect of the Estate of Malakwen Tarus to be determined in a Succession Cause
  3. 3.Costs of the application in the cause

Authorities

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Legislation

  • Succession ActCap 160
  • Civil Procedure RulesOrder 40

Cases cited (4)

  • Giella Vs Cassman Brown
  • Hasmukh Khetshi Shah Vs Tinga Traders Ltd
    Civil Appeal No. 326 of 2002 KLR 462
  • Wairimu Mureithi -vs- City Council of Nairobi
    Civil Appeal No. 5 of 1979 KLR 332, 396
  • In the Matter of the Estate of Ng’ang’a Njoroge Njuguna Deceased
    SUCC. Cause No. 1016 of 1993
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

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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, "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.