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ELCDismissedNot stated in the judgment (Makueni Environment and Land Court suit)· [2019] KEELC 1524 (KLR)

Katulu Kimilu Mbindyo (Suing as the legal representative of the estate of Mbindyo Musyoki) v Peter Kioko Kimilu & another [2019] KEELC 1524 (KLR)

Environment and Land Court of Kenya
7 October 2019
MGMbogo C. G.
943 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a widow's bid to stop her son's alleged sale of family land because she couldn't prove her case was likely to succeed.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni (Mbogo C. G., J) on the plaintiff's Notice of Motion dated 28th April 2018, brought under Section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking a temporary and permanent injunction restraining the defendants from interfering with, trespassing on or dealing with land parcel Makueni/Kakutha/1164. The plaintiff, holder of a limited grant of letters of administration ad litem over the estate of Mbindyo Musyoki (deceased), alleged that the 1st defendant, her son, illegally sold the parcel to the 2nd defendant, who allegedly resides on it. The 1st defendant opposed the application as misconceived and an abuse of process, noting a pending succession cause (Makueni Succession Cause No. 157 of 2018) and that the real dispute concerns determination of the deceased's heirs and dependants. The 2nd defendant denied purchasing the land or residing on it. Applying the Giella v Cassman Brown principles, the court found the applicant had not demonstrated a prima facie case with probability of success nor irreparable injury not compensable by damages, and noted the sequential nature of the test per Kenya Commercial Finance Co. Ltd v Afraha Education Society. Succession arguments were held to belong before the probate court. The application was dismissed with each party bearing their own costs given their close relationship. The substantive suit proceeds to hearing.

Key legal issues

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01

Whether the applicant satisfied the Giella v Cassman Brown criteria for an interlocutory injunction

Holding

The applicant did not satisfy the criteria; no prima facie case with probability of success and no irreparable injury compensable only by damages was shown

Reasoning

The court held that an applicant for an interlocutory injunction must meet the three Giella principles sequentially. Although the plaintiff held a limited grant ad litem enabling her to file and prosecute the suit, she did not demonstrate a prima facie case with probability of success, nor irreparable injury not adequately compensable by damages. Succession arguments belonged before the probate court, not this suit at interlocutory stage.

p. 2

Legal principles established

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  • The conditions for an interlocutory injunction under Giella v Cassman Brown must be satisfied sequentially; the second condition is addressed only if the first is satisfied

Court orders

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  1. 1.The Notice of Motion application dated 28th April 2018 for temporary and permanent injunction is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40

Cases cited (2)

  • Giella vs. Cassman Brown & Co. Ltd.
    [1973] EA 358
  • Kenya Commercial Finance Co. Ltd. Afraha Education Society
    [2001] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 40 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, "Katulu Kimilu Mbindyo (Suing as the legal representative of the estate of Mbindyo Musyoki) v Peter Kioko Kimilu & another [2019] KEELC 1524 (KLR)", Case Analysis (2019). Not stated in the judgment (Makueni Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1524/eng@2019-10-07

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