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ELCDismissedNotice of Motion dated 10th March 2017 (Nakuru ELC suit, L.R Nos. 420/2 and 420/2/1 Naivasha)· [2018] KEELC 1590 (KLR)

Muhu Holdings Limited v James Muhu Kangari [2018] KEELC 1590 (KLR)

Environment and Land Court
27 September 2018
DOD. O. Ohungo
1,262 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A company seeking to stop relatives from dealing with inherited Naivasha land lost because the property belongs to a deceased's estate before the Succession Court.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo J of the Environment and Land Court at Nakuru, delivered on 27th September 2018, determined the plaintiff's Notice of Motion dated 10th March 2017 seeking an interim injunction restraining the defendants from trespassing on, occupying, constructing on, leasing, mining on or otherwise dealing with L.R Nos. 420/2 and 420/2/1 Naivasha, together with ancillary orders for police enforcement. The plaintiff, a company holding the suit properties under a Declaration of Trust executed by heirs of James Muhu Kangari (deceased) pursuant to his will, alleged that the 1st defendant, a grandson of the executrix and an heir, wrongfully trespassed in February 2017 with intent to set up structures and machinery. The 1st defendant opposed, contending that the suit properties are the subject of Nairobi HC Succession Cause No. 1027/1989 (consolidated with Cause No. 226/2013), that the dispute is a family matter for the Family Division, and that he is an heir entitled to a share of the estate. Applying Giella v Cassman Brown as clarified by Nguruman Limited v Jan Bonde Nielsen, the court held that the plaintiff had not established a prima facie case: the suit properties are undisputedly part of the deceased's estate before the Succession Court, which had recently ruled on interference with estate property. Granting the injunction risked conflicting with the Succession Court's orders, an affront to Section 6 of the Civil Procedure Act. The application was dismissed with costs to the defendants.

Key legal issues

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01

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

Holding

No prima facie case was established; the suit properties form part of the estate of James Muhu Kangari (deceased) pending in Nairobi HC Succession Cause No. 1027/1989, so the plaintiff cannot show a probability of success.

Reasoning

The court applied Giella v Cassman Brown as clarified in Nguruman. Since the suit properties are undisputedly part of a deceased's estate before the Succession Court, which was actively issuing orders on interference with estate property, granting injunctive relief here would risk conflicting orders and offend Section 6 of the Civil Procedure Act on sub-judice.

p. 2
02

Whether the dispute properly belongs to the Family Division/Succession Court

Holding

The succession court is the proper forum dealing with interference with estate properties; this court should not duplicate or conflict with its orders.

Reasoning

The defendant argued the matter was a family dispute for the Family Division. The court noted the succession court had, in a ruling of 12th May 2017, granted orders restraining interference with estate property, demonstrating it can and does handle such issues, making orders here redundant and potentially conflicting.

p. 2

Legal principles established

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  • The three Giella conditions are sequential hurdles; failure to establish a prima facie case ends the inquiry
  • A court should not make orders on property that is the live subject of succession proceedings, to avoid conflicting orders

Court orders

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  1. 1.Notice of Motion dated 10th March 2017 is dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2 and 4
  • Civil Procedure ActSection 6

Cases cited (3)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • In Re Estate of James Muhu Kangari (Deceased)
    [2017] e KLR
Jurisdiction invoked
Order 40 rules 1, 2 and 4 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, "Muhu Holdings Limited v James Muhu Kangari [2018] KEELC 1590 (KLR)", Case Analysis (2018). Notice of Motion dated 10th March 2017 (Nakuru ELC suit, L.R Nos. 420/2 and 420/2/1 Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1590/eng@2018-09-27

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