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ELCPartially AllowedNotice of Motion dated 4th October, 2016 (suit filed in the Environment and Land Court at Kajiado)· [2018] KEELC 3671 (KLR)

Joseph Silemi Mayon (Suing as legal representative of the estate of Saginoi Ole Ndetuka aka Sigindi Ole Ndentuka Deceased) v Isaiah Mutonyi & 3 others [2018] KEELC 3671 (KLR)

Environment and Land Court
30 April 2018
3,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Kajiado, delivered by Christine Ochieng J on 30th April 2018, determined the Plaintiff's Notice of Motion dated 4th October 2016 seeking a temporary injunction to preserve land originally owned by Saginoi Ole Ndetuka, who died on 8th June 1992. The Plaintiff, holder of a Limited Grant of Letters of Administration Ad Litem, alleged that the suit property was fraudulently transferred to the 3rd Defendant without letters of administration or Land Control Board consent, then subdivided and transferred to the 1st and 2nd Defendants, and that strangers were negotiating to purchase the land. The 1st and 2nd Defendants opposed, asserting a concluded sale with the deceased, a settlement embodied in an Indemnity Agreement, and lawful registration as proprietors. Applying the Giella v Cassman Brown principles as informed by Mrao and Nguruman, the court found the Plaintiff had locus standi as administrator ad litem and had established a prima facie case, since the subdivision and transfers occurred after the deceased's death without any grant to the 3rd Defendant, contrary to Section 45(1) of the Law of Succession Act. The court also found irreparable injury not compensable by damages and no doubt on the balance of convenience. Instead of an injunction in the terms sought, the court ordered an inhibition registered against the original parcel and its subdivisions, maintenance of the status quo, and costs in the cause, directing the parties to set the suit down for hearing.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the suit property belonged to the deceased; the subdivision and transfers occurred after his death without letters of administration, and the Plaintiff, as holder of Letters of Administration Ad Litem, has locus standi

Reasoning

The court applied the Giella principles and Mrao definition of a prima facie case. It found it undisputed that the deceased owned the suit property and died in 1992 before the sale was concluded. The 3rd Defendant was never shown to have obtained Letters of Administration, yet received monies and effected subdivision and transfers. Dealing with a deceased person's estate without a grant contravenes Section 45(1) of the Law of Succession Act, so the Plaintiff established an apparent infringement of a right.

p. 3
02

Whether the Plaintiff would suffer irreparable injury not compensable by damages

Holding

Yes - the injury is not speculative since the 1st and 2nd Defendants already hold titles to the subdivisions and there is a real likelihood of disposal to third parties

Reasoning

Applying Nguruman, the court held the applicant must show actual, substantial and demonstrable injury incapable of adequate monetary compensation. The Plaintiff had deponed that strangers were going round the property asking for beacons and negotiating to purchase from the 1st and 2nd Defendants, and that the Defendants already held title deeds to the subdivisions. The court found the fear real, not speculative.

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03

Where the balance of convenience lies

Holding

If title is not preserved pending the outcome of the suit, it may be wasted away; preservation through inhibition and status quo was appropriate

Reasoning

The court found itself not in doubt on the balance of convenience, noting that the titles to the subdivisions were already registered in favour of the 1st and 2nd Defendants while the Plaintiff claimed beneficial interest. Rather than grant the injunction as prayed, it opted for an inhibition registered against the parcels and maintenance of the status quo, deferring the substantive disputes to full trial.

p. 3

Legal principles established

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  • A holder of Letters of Administration Ad Litem has locus standi to institute a suit over the deceased's property where transactions were carried out without a grant of representation
  • No person may take possession of, dispose of, or intermeddle with the free property of a deceased person except as authorized by a grant of representation

Court orders

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  1. 1.An inhibition order be and is hereby registered by the Land Registrar Kajiado North as against land parcel number KAJIADO/KAPUTIEI – NORTH / 1569 and resultant subdivisions into KAJIADO/KAPUTIEI – NORTH / 9332 and KAJIADO/KAPUTIEI – NORTH / 9333 respectively of any dealings, lease, subdivision, transfer or charge pending the hearing and determination of the suit
  2. 2.The obtaining status quo be maintained pending the hearing and determination of the suit
  3. 3.Costs in the cause
  4. 4.Parties urged to comply with Order 11 and set the suit down for hearing as soon as possible

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2 and 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land Registration ActSection 68(1)
  • Law of Succession ActSection 2(1)
  • Law of Succession ActSection 45(1)
  • Registered Land Act (Repealed)Section 27

Cases cited (7)

  • Giella Vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Limited Vs. First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Uhuru Highway Development Limited V Central Bank of Kenya & 2 others
    (1995) eKLR
  • Nabro Properties V Sky Structures Limited
    (2002) 2KLR 299
  • John Muritu Kigwe and another V Agip (K) Ltd
    Nairobi High Court Commercial Division Civil Suit No. 2382 of 1999
  • Kyangaro V Kenya Commercial Bank Limited & Another
    (2004) 1KLR 126
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Order 40 rules 1, 2 and 3 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 68(1) of 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, "Joseph Silemi Mayon (Suing as legal representative of the estate of Saginoi Ole Ndetuka aka Sigindi Ole Ndentuka Deceased) v Isaiah Mutonyi & 3 others [2018] KEELC 3671 (KLR)", Case Analysis (2018). Notice of Motion dated 4th October, 2016 (suit filed in the Environment and Land Court at Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3671/eng@2018-04-30

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