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ELCAllowedConstitutional Petition (Kwale/Mwavumbo/46 suit), Mombasa· [2019] KEELC 783 (KLR)

Johnson Mwero & 5 others v Office of the Public Trustee & 2 others [2019] KEELC 783 (KLR)

Environment and Land Court
13 November 2019
MSMunyao Sila
711 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 petition was commenced through a Constitutional Petition alleging contravention of constitutional rights, including the right to own property under Article 40, by the petitioners, who are sons and daughters of the late Peter Johnson Mwero and Elizabeth Johnson Mwero, registered proprietors of Kwale/Mwavumbo/46, later subdivided into Kwale/Mwavumbo/179. The 1st respondent, the Public Trustee, was appointed on 28 May 2007 to administer the estate together with an interested party. The petitioners alleged that on 1 May 2019 they discovered unknown persons excavating and developing the suit land; the 1st respondent failed to intervene; and the 2nd respondent was responsible for the developments. They sought a permanent restraint against the 2nd respondent and declarations over the property. Two applications were before the court: an injunction application to restrain the 2nd respondent pending trial, and an application dated 1 October 2019 by Simon Ndegwa Mwero and Victoria Mzije Johnson Mkala seeking to be enjoined as 2nd and 3rd interested parties, claiming to be beneficiaries of the late Johnson Mkala Mwero and Elizabeth Johnson Mwero whose estates are the subject of Mombasa Succession Causes No. 27 of 1987 and 82 of 2003, and alleging the petition was aimed at disinheriting them. The 2nd respondent filed no response. The court allowed the injunction, restraining the 2nd respondent from making developments, structures, or dispositions on the suit property pending hearing and determination of the suit, with costs to the petitioners. It also allowed the joinder, enjoining the two applicants as 2nd and 3rd interested parties, with no orders as to costs on that application.

Key legal issues

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01

Interim preservation of the suit land pending determination of the petition

Holding

The court granted an injunction restraining the 2nd respondent from developing or disposing of the suit property so as to maintain the status quo, the 2nd respondent having filed nothing in opposition.

Reasoning

The injunction application was aimed at the 2nd respondent, who did not oppose the motion. The court held that to maintain the status quo, the 2nd respondent should be restrained from making developments or structures or entering dispositions on the suit property pending hearing and determination of the suit, and awarded costs of the application to the petitioners against the 2nd respondent.

p. 1
02

Joinder of persons claiming to be beneficiaries of the estate as interested parties

Holding

The court allowed the application by Simon Ndegwa Mwero and Victoria Mzije Johnson Mkala to be enjoined as 2nd and 3rd interested parties, the petitioners not opposing the application.

Reasoning

The applicants claimed to be biological son and daughter of the late Johnson Mkala Mwero and Elizabeth Johnson Mwero, beneficiaries of estates in Mombasa Succession Causes No. 27 of 1987 and 82 of 2003, and alleged the petition was commenced without consulting them. The petitioners did not oppose, and the court enjoined them without costs.

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Legal principles established

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    Court orders

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    1. 1.Injunction restraining the 2nd respondent from making any developments or structures on the suit property, or entering into any dispositions, pending the hearing and determination of the suit
    2. 2.Costs of the injunction application awarded to the petitioners as against the 2nd respondent
    3. 3.Simon Ndegwa Mwero and Victoria Mzije Johnson Mkala enjoined as 2nd and 3rd interested parties
    4. 4.No orders as to costs on the application for joinder

    Authorities

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    Legislation

    • Constitution of KenyaArticle 40
    Jurisdiction invoked
    Constitutional Petition alleging contravention of constitutional rights including the right to own property under Article 40

    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, "Johnson Mwero & 5 others v Office of the Public Trustee & 2 others [2019] KEELC 783 (KLR)", Case Analysis (2019). Constitutional Petition (Kwale/Mwavumbo/46 suit), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/783/eng@2019-11-13

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