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ELCPartially Allowed· [2018] KEELC 185 (KLR)

Alice Mbesa Keesi & 2 others v Benjamin Mutua Keesi & 8 others [2018] KEELC 185 (KLR)

Environment and Land Court
20 December 2018
3,182 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court protected a deceased family's property with an injunction, but refused to jail anyone because some respondents were never served the earlier order.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Jonathan Keesi Nguzi (deceased) under confirmed grant in Succession Cause No. 119 of 2004, moved the court by notice of motion dated 26th February, 2014 seeking (a) an injunction restraining the 5th and 9th Respondents from dealing with Kilala/Kaumoni/386 and Kilala/Kaumoni/323, and (b) committal to civil jail of the 5th and 9th Respondents for contempt of injunctive orders issued by Justice Mutungi on 26th July, 2013, and of the 1st to 4th Respondents for aiding and abetting that disobedience. The application invoked sections 1A, 1B, 3, 3A, 63 and 95 of the Civil Procedure Act and Order 40 of the Civil Procedure Rules. The Applicants argued the orders were served and endorsed with a penal notice, and that the 5th and 9th Respondents built a granary, pit latrine and residential house and cultivated crops in breach. The Respondents denied service and asserted the interim orders had lapsed. The court applied the Giella v Cassman Brown principles, found the 1st to 3rd Respondents' sale of estate land without letters of administration amounted to intermeddling under section 45 of the Law of Succession Act, and held a prima facie case and irreparable injury established, with the balance of convenience favouring the Applicants. On contempt, however, the process server's affidavit showed no service on the 5th and 9th Respondents, so committal could not issue. The application partially succeeded: the injunction (prayer 3) and costs (prayer 6) were granted; prayers 4 and 5 (committal) were declined.

Key legal issues

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01

Whether a prima facie case was established for temporary injunction

Holding

A prima facie case with probability of success was shown; as administrators the Applicants have a duty to protect the estate

Reasoning

The Applicants held confirmed letters of administration in Succession Cause No. 119 of 2004. The 1st-3rd Respondents did not deny selling land to the 7th and 8th Respondents without letters of administration, which amounts to intermeddling under section 45 of the Law of Succession Act. The administrators have a duty to protect the estate.

p. 4
02

Irreparable injury and balance of convenience

Holding

The Applicants and legitimate beneficiaries would be denied their rightful share if the estate were wasted before distribution; balance of convenience favours the Applicants

Reasoning

The court found the estate would be depleted before distribution if the Respondents' dealings continued. The Respondents admitted transacting with the suit property without following the Law of Succession Act. The court was not in doubt, but even if it were, the balance of convenience tilted in favour of the Applicants.

p. 4
03

Contempt of court and committal

Holding

Contempt was not established because the 5th and 9th Respondents were not shown to have been personally served with the order

Reasoning

Although the process server's affidavit showed service on the 1st-4th, 7th and 8th Respondents, there was no indication the 5th and 9th Respondents were served. Contempt proceedings being quasi-criminal, notice of the order and opportunity to obey must be proved before committal; consequently, the alleged aiding and abetting also failed.

p. 5

Legal principles established

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  • A party cannot be committed for contempt of a court order that was never served upon them
  • Sale of a deceased person's property without letters of administration amounts to intermeddling contrary to section 45 of the Law of Succession Act

Court orders

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  1. 1.Temporary injunction restraining the Respondents from trespassing onto, constructing, cultivating, selling, invading, wasting or in any way dealing with or interfering with the suit properties Kilala/Kaumoni/386 and Kilala/Kaumoni/323 pending hearing and determination of the suit (prayer 3)
  2. 2.Costs of the application provided for (prayer 6)
  3. 3.Prayers 4 and 5 (committal to civil jail) declined

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3, 3A, 63(c), 95
  • Civil Procedure RulesOrder 40, rule 3(1)
  • Law of Succession Actsection 45

Cases cited (8)

  • Teachers Service Commission V Kenya National Union of Teachers & 2 others
    [2013] eKLR
  • Judicial Service Commission V Speaker of the National Assembly & Another
    [2013] eKLR
  • Central Bank of Kenya & Another Vs Ratilal Automobiles Limited & others
    Civil Application No. Nai 247 of 2006
  • Commercial of Africa Vs Ndirangu
    [1990-1994]
  • Republic Vs Kenya Posts & Telecommunications
    [1999] EA 250
  • Africa Management Communication Intentional Ltd Vs Joseph Mathenge Mosa & Another
    [2013] eKLR
  • Paul Sauti Muthui alias Paul Saidia Muthui V Wilson Maingi Mutia
    [2013] eKLR
  • Giella Vs Cassman Brown and Company Ltd
    [1973] EA 358
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63 and 95 of the Civil Procedure Act and 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, "Alice Mbesa Keesi & 2 others v Benjamin Mutua Keesi & 8 others [2018] KEELC 185 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/185/eng@2018-12-20

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