Elizabeth Njuguna & another v Stephen Njuguna Kamau [2018] KEELC 1222 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Criteria for grant of a mandatory interim injunctive order
The applicants failed to meet the special-circumstances, clear-case threshold applicable to mandatory interlocutory injunctions
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.
Effect of joint tenancy on the suit property upon death of one joint tenant
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
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.
Competence of counsel's affidavit in support of the application
An affidavit sworn by the applicants' advocate has no probative evidential value in a dispute of this nature
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 2/11/2016 is dismissed
- 2.The applicants shall pay costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.