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ELCDismissedNotice of Motion dated 21st July, 2016 (Environment and Land Court, Machakos)· [2017] KEELC 3527 (KLR)

Robina Mwikali Wambua & 2 others v Margaret Nthunya Ngau [2017] KEELC 3527 (KLR)

Environment and Land Court
3 March 2017
820 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A revoked succession grant invalidates the title deeds it produced, so beneficiaries cannot use them to evict relatives still living on family land.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of Mavoko Block 3/24229, 3/24231 and 3/24232, moved the Court by Notice of Motion dated 21st July, 2016 seeking a temporary injunction restraining the Defendant from entering, trespassing on, erecting buildings on, selling or otherwise dealing with the three parcels pending the hearing of the suit. They deponed that the parcels were allocated equally to the children of the late Wambua Nguitha Maitha and that the Defendant trespassed between January and July 2016. The Defendant, the deceased's daughter-in-law, opposed the application, explaining that the suit parcels were sub-divisions of Mavoko Block 3/2266 distributed through Machakos Succession Cause No. 400 of 2006; that the Confirmation of Grant was revoked by a Ruling dated 2nd December, 2015 after a beneficiary established that some beneficiaries, including herself, were displaced during distribution; and that the revocation invalidated all titles processed under the grant, which she said were created to disinherit her. The court held that the Plaintiffs' titles, obtained by transmission on 21st June, 2013, rested on a Confirmation of Grant that had since been revoked, and could not support a claim of ownership. It found no prima facie case with chances of success and noted that the Defendant was entitled to remain in occupation pending re-distribution of the estate by the High Court. The application was dismissed with costs on 3rd March, 2017.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for an interlocutory injunction

Holding

They did not; their registered titles were acquired by transmission under a Confirmation of Grant that was subsequently revoked by the High Court in Machakos Succession Cause No. 400 of 2006

Reasoning

The court found the three suit parcels were sub-divisions of Mavoko Block 3/2266, registered in favour of the deceased. Although the Plaintiffs exhibited title deeds dated 21st June, 2013, they did not deny registration was by transmission. The Confirmation of Grant was revoked on 2nd December, 2015 upon a finding that some beneficiaries, including the Defendant, were displaced during distribution. Revocation undermined the Plaintiffs' root of title, so no prima facie case with chances of success was established.

p. 2
02

Whether the Defendant is a trespasser

Holding

No; she is entitled to remain in occupation of the land she occupies until the estate is re-distributed by the High Court

Reasoning

The Defendant was married to a son of the deceased and was shown where to settle on the original parcel in 1994. The court in the succession cause found she and other beneficiaries were displaced from their homes during the distribution process, leading to revocation of the grant. Pending re-distribution, her occupation is lawful, defeating the trespass claim underpinning the injunction application.

p. 2

Legal principles established

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  • Where a Confirmation of Grant in a succession cause is revoked, titles issued pursuant to that grant cannot be relied upon by the beneficiaries to claim ownership, and such titles ought to be cancelled pending re-distribution of the estate
  • A person displaced from their home during the distribution of an estate and occupying land thereof is entitled to continue in occupation until the estate is re-distributed by the High Court

Court orders

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  1. 1.Dismissal of the Plaintiffs' Notice of Motion dated 21st July, 2016 seeking a temporary injunction
  2. 2.Costs of the application to the Defendant
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (suit land Mavoko Block 3/24229, 3/24231 and 3/24232)

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, "Robina Mwikali Wambua & 2 others v Margaret Nthunya Ngau [2017] KEELC 3527 (KLR)", Case Analysis (2017). Notice of Motion dated 21st July, 2016 (Environment and Land Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3527/eng@2017-03-03

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