Daniel Kimase Kipsoi v Protus Kiplagat Cheruiyot & 3 others [2019] KEELC 866 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case
No - the vendors (William Kipkemboi Kiprono and Eunice Aiyobei Rotich) had no title to the suit land, which was not among the assets distributed in the confirmed succession cause, and the Plaintiff exhibited no title documents
The court found the suit land belonged to the late Kipkosgei Sigor and was not distributed in Eldoret High Court Succession Cause No. 92 of 2003. The vendors therefore had no capacity to sell, and their attempted sale would contravene Sections 82 and 45 of the Law of Succession Act as intermeddling. Without title documents or a legally recognised proprietary claim, the Plaintiff could not show a reasonable probability of success, citing Giella v Cassman Brown and Mrao v First American Bank.
Whether the Plaintiff would suffer irreparable loss without an injunction
No - the Defendants were in occupation even at the time of the sale transactions, and the Plaintiff knowingly bought without vacant possession
The court noted the Defendants were in occupation when the sale agreements were executed and buried their late mother on the land in 2018. The Plaintiff, aware of that occupation, must be taken to have agreed to deal with it. No evidence was presented showing irreparable harm if the injunction was withheld, so this Giella limb also failed.
Where the balance of convenience lies
With the Defendants, some of whom are school-going minors residing on the land, having lost their mother late in 2018, with their father living away
Relying on the affidavits of William Kipkemboi Kiprono and the 1st Defendant, the court found the Defendants' residence and personal circumstances tilted the balance of convenience towards their continued occupation and use of the suit land pending hearing and determination of the suit.
Legal principles established
#- Where land was not distributed in a confirmed succession cause, the administrators must return to the Succession Court for appropriate orders before they can sell or distribute it; dealing with such property otherwise contravenes Section 82 of the Law of Succession Act and may amount to intermeddling under Section 45
- A plaintiff seeking a temporary injunction must establish a prima facie case with a probability of success; failure to exhibit any legally recognised title document defeats that threshold
Court orders
#- 1.The Plaintiff's Notice of Motion dated 8th March 2019 is dismissed
- 2.The Plaintiff to pay the Defendants' costs of the application
- Jurisdiction invoked
- Inherent jurisdiction to grant interlocutory temporary injunctions under the Civil Procedure Act and the court's power to preserve the subject matter pending hearing of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kimase Kipsoi v Protus Kiplagat Cheruiyot & 3 others [2019] KEELC 866 (KLR)", Case Analysis (2019). Notice of Motion dated 8th March 2019 in the main suit (suit land: L.R. No. Tingwa Farm Plot No. 133). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/866/eng@2019-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.