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ELCDismissed· [2017] KEELC 3827 (KLR)

Eunice Wairimu Muturi & another v G M Mukuu & 3 others [2017] KEELC 3827 (KLR)

Environment and Land Court
2 October 2017
EOE. O. OBAGA
1,072 words in judgment
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The bottom line

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A Nairobi court refused to freeze land bought by a third-party purchaser because the estate showed no evidence of fraud or wrongdoing.

What this practically means

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Executive summary

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The applicants, administratrix and administrator of the estate of Gerald Muturi Maina (deceased), applied for injunctive and preservatory orders to preserve LR No. 209/8334 pending trial. The deceased had in 2003 contracted to buy LR No. 209/1832 for Kshs. 10,000,000, paying Kshs. 3,000,000. He obtained judgment for specific performance in 2015 after the vendor's defence was struck out, but enforcement proved difficult because the land had been subdivided and one subdivision amalgamated into LR No. 209/8334, now registered in the first respondent's name. The applicants alleged the subdivision and amalgamation were fraudulently done in collusion with the second and third respondents, in breach of a caveat. The first respondent maintained he purchased the suit land from Mwangi Thuo Holdings Limited in 2007, took possession, and had charged it to Barclays Bank; that the subdivision predated the deceased's suit and no fraud was proved. Applying the Giella v Cassman Brown principles, the court found that the subdivision was requested by the vendor before the sale agreement and could not be stopped, that the amalgamated title passed to Mwangi Thuo Holdings Limited and then to the first respondent, and that there was no evidence of wrongdoing by any respondent. The application was dismissed with costs to the first respondent.

Key legal issues

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01

Whether the applicants had a prima facie case against the respondents for purposes of an injunction

Holding

No prima facie case was established; the subdivision of LR No. 209/1832 was requested by the vendor before the sale agreement and there was no evidence of wrongdoing or collusion by the respondents.

Reasoning

The court examined documents filed by both sides. The subdivision process began before the deceased entered into the sale agreement with the vendor, who tried but failed to stop it. The amalgamated title passed to Mwangi Thuo Holdings Limited, which sold to the first respondent. On the documents, the Director of Survey and Chief Land Registrar could not be said to have colluded, and no fraud was proved against the first respondent.

p. 2

Legal principles established

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  • The principles for the grant of an interlocutory injunction are: a prima facie case with probability of success; irreparable injury not compensable in damages; and, if in doubt, a decision on a balance of convenience.

Court orders

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  1. 1.The applicants' application for injunctive/preservatory orders is dismissed with costs to the first respondent

Authorities

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Cases cited (1)

  • Giella Vs Cassman Brown Co.Ltd
    (1973) EA 358
Jurisdiction invoked
Inherent jurisdiction of the court to grant injunctive and preservatory orders pending hearing and determination of the suit

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, "Eunice Wairimu Muturi & another v G M Mukuu & 3 others [2017] KEELC 3827 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3827/eng@2017-10-02

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