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ELCDismissedNot stated in the judgment extract· [2018] KEELC 1222 (KLR)

Elizabeth Njuguna & another v Stephen Njuguna Kamau [2018] KEELC 1222 (KLR)

Environment and Land Court
18 October 2018
1,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court's Environment and Land Court dismissed adult children's bid to stay on their father's jointly-owned land, confirming it passed fully to him by survivorship.

What this practically means

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Executive summary

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The plaintiffs, adult daughters of the defendant, sued over Land Title Number Ngong/Ngong/2939, registered in the names of their father and his late wife (their mother), contending they were being dispossessed of 'family land' after their father's second wife allegedly orchestrated their eviction. They sought a mandatory interim injunction reinstating their property rights and granting them unconditional access and peaceful stay pending determination of the application and suit. The application was supported only by an affidavit sworn by their advocate, Joshua Kiptoo. The defendant, aged 85, opposed, deposing that the applicants were married adults who had occupied his matrimonial house since their mother's funeral in 2010, rendering him homeless. Counsel for the defendant challenged the competence of counsel's affidavit and argued that the property, held as a joint tenancy, vested wholly in the defendant by survivorship under section 91(4) of the Land Registration Act. The court agreed: the parcel register showed joint proprietorship, and on the death of one joint tenant her interest vested in the survivor, so the property does not form part of the deceased's estate. The court applied the higher threshold for mandatory interlocutory injunctions and held that counsel is not a competent witness, giving the affidavit no probative value. The Notice of Motion dated 2/11/2016 was dismissed with costs to the applicants. The main suit remained pending.

Key legal issues

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01

Criteria for grant of a mandatory interim injunctive order

Holding

The applicants failed to meet the special-circumstances, clear-case threshold applicable to mandatory interlocutory injunctions

Reasoning

The court adopted the test in Local Authority International Finance Limited v Agro-Export, requiring special circumstances and a high sense of assurance that the injunction would be held rightly granted at trial, a higher standard than for prohibitory injunctions. The court found this standard unsatisfied and dismissed the application.

p. 2
02

Effect of joint tenancy on the suit property upon death of one joint tenant

Holding

By the doctrine of survivorship under section 91(4) of the Land Registration Act, the whole property vested in the surviving joint proprietor, the defendant, and does not form part of the deceased's estate

Reasoning

The parcel register showed the defendant and his late wife as joint proprietors. Section 91(4) of the Land Registration Act provides that on the death of a joint tenant the tenant's interest vests in the surviving tenant. Accordingly the property vests wholly in the defendant and is outside succession proceedings of the deceased's estate.

p. 2
03

Competence of counsel's affidavit in support of the application

Holding

An affidavit sworn by the applicants' advocate has no probative evidential value in a dispute of this nature

Reasoning

The application was supported solely by an affidavit sworn by the applicants' advocate, Joshua Kiptoo. The court held, agreeing with the respondent's submission, that counsel is not a competent witness to make such depositions and the affidavit lacked probative value, giving an independent basis to refuse the relief.

p. 2

Legal principles established

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  • On death of a joint tenant, the deceased tenant's interest vests in the surviving joint tenant and the land does not form part of the deceased's estate
  • A mandatory injunction ought not be granted on an interlocutory application absent special circumstances and only in clear cases, on a higher standard than for a prohibitory injunction
  • Counsel is not a competent witness to make depositions in a dispute of this nature; an affidavit sworn by counsel has no probative evidential value

Court orders

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  1. 1.The Notice of Motion dated 2/11/2016 is dismissed
  2. 2.The applicants shall pay costs of the application

Authorities

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Legislation

  • Land Registration ActSection 91(4)
  • Constitution of KenyaArticle 57

Cases cited (4)

  • Local bail International Finance Limited v Agro-Export and Another
    (1986) 1 All ER 901
  • Kamau Mucuha v The Ripples Limited
    Civil Application Number Nai 186 of 1992
  • Jaj Super power cash and carry Limited v Nairobi City Council and two others
  • Shariff Abdi Hassan v Nadhif Jama Adan
    (2006) eKLR
Jurisdiction invoked
Inherent jurisdiction of the court to grant interim injunctive orders (application under notice of motion; no specific provision stated beyond the Land Registration Act)

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, "Elizabeth Njuguna & another v Stephen Njuguna Kamau [2018] KEELC 1222 (KLR)", Case Analysis (2018). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1222/eng@2018-10-18

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