Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2017] KEELC 3440 (KLR)

F M A v T T K & another [2017] KEELC 3440 (KLR)

Environment and Land Court
7 March 2017
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The applicant, a daughter of the late AAM (registered owner of land at Milimani, Kitale), moved the court by Notice of Motion dated 5th July 2016 seeking an injunction restraining the respondents - one of the deceased's wives and the deceased's brother - from selling, leasing or charging the suit land pending hearing of the suit. She contended the land was purchased through the joint efforts of her mother (a wife divorced by the deceased) and the deceased, that she and her sister resided there, that the respondents had leased the land to third parties, and that the first respondent was not lawfully married to the deceased. The respondents opposed, arguing the application was premature because the deceased left a will not yet opened due to Muslim law dictates, and that the applicant had not come with clean hands, having procured a Chief's letter and a limited grant by falsely claiming she and her sister were the sole beneficiaries. The court applied the settled principles for temporary injunctions - prima facie case, irreparable harm, and balance of convenience - and held that the applicant failed to establish a prima facie case, particularly as documents showed the deceased himself, not the respondents, had leased the premises to raise school fees for minor children. Since a will exists but is unopened, the dispute over distribution belongs in the succession cause. The application was dismissed with costs to the respondents.

Key legal issues

#
01

Whether the applicant established a prima facie case with probability of success for a temporary injunction

Holding

The applicant failed to demonstrate a prima facie case; the dispute over the suit land should be resolved in a succession cause where the deceased's will is to be opened, and her claim that the respondents leased the land was untrue since the deceased himself had leased it

Reasoning

The court applied the settled Giella-type principles for temporary injunctions: prima facie case, irreparable harm not compensable in damages, and balance of convenience. It found the applicant's pleadings premature since a will exists but has not been opened under Muslim law dictates. The evidence showed the premises were leased by the deceased, not the respondents, contradicting the applicant's core allegation. Her conduct in obtaining a limited grant through a false Chief's letter showed unclean hands, defeating equitable relief.

p. 2
02

Whether the applicant's suit was premature given the existence of an unopened will

Holding

Yes - the issues raised should be ventilated in the succession cause after the will is opened

Reasoning

Both parties confirmed the deceased left a will which has not been opened, partly due to Muslim law requirements delaying its opening. The court held that the distribution of the deceased's properties, including the suit land, is properly addressed in the succession cause. Filing a suit over one property while the deceased owned others and had other children was characterised as an attempt to delay or scuttle succession. The applicant was therefore adjudged to have moved prematurely.

p. 2

Legal principles established

#
  • No one can legally deal with a deceased person's property until succession is carried out and a grant or probate is confirmed
  • An applicant for an interlocutory injunction must establish a prima facie case with probability of success, that damages would not be an adequate remedy, and, if in doubt, the balance of convenience
  • An injunction being an equitable remedy, the applicant must approach the court with clean hands

Court orders

#
  1. 1.The applicant's Notice of Motion dated 5th July 2016 seeking an injunction is dismissed
  2. 2.Costs of the application awarded to the respondents
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (specific enabling statute not cited in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "F M A v T T K & another [2017] KEELC 3440 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3440/eng@2017-03-07

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