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ELCDismissedApplication dated 12th February, 2018 (suit by Plaint dated 6th September, 2017)· [2019] KEELC 3194 (KLR)

Mathew Mwanza Makau & another v Gospel Assembly Fellowship Ministry & 2 others [2019] KEELC 3194 (KLR)

Environment and Land Court
24 May 2019
OAO.A. Angote
966 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked family members from stopping a land sale because they first had to overturn the succession court's grant of administration.

What this practically means

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Executive summary

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The Plaintiffs sought a temporary injunction restraining the Defendants from evicting them from, selling, disposing of, or interfering with land parcel Matinyani/Kalimani/1056 in Kitui County, pending hearing of the suit. They deponed that the land was registered in the name of their late brother, Kivuu Makau Nzuva, who they said was unmarried, childless and of unsound mind, and that the transfer to the 1st Defendant was fraudulent because the family was not involved. The 2nd Defendant, who claimed to be the deceased's wife, produced a Grant of Letters of Administration Intestate issued on 16th January 2017 and a Certificate of Confirmation of Grant issued on 15th June 2017 in Kitui Chief Magistrate's Succession Cause No. 333 of 2016, under which the suit land was transferred to the 1st Defendant. The Defendants opposed the application, arguing the Plaintiffs had not established a prima facie case and had exhibited no grant showing any interest in the estate. The court held that the Plaintiffs' interest in the land could arise only if they successfully challenged the Letters of Administration and the Certificate of Confirmation of Grant in the succession cause, and that questions about whether the deceased had a wife or was of unsound mind belonged before the succession court, not this suit. Finding no prima facie case, the court dismissed the application with costs.

Key legal issues

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01

Whether the Plaintiffs have locus standi to challenge the transfer of the deceased's land without setting aside the succession grant

Holding

The Plaintiffs lack locus standi; their interest can only arise if they successfully challenge the Letters of Administration and Certificate of Confirmation of Grant issued in Succession Cause No. 333 of 2016

Reasoning

The suit land was transmitted to the 2nd Defendant and transferred to the 1st Defendant pursuant to a court order in the succession cause. Issues concerning whether the deceased had a wife or was of unsound mind can only be raised before the succession court. Until the grant and its confirmation are set aside, the Plaintiffs cannot claim an interest in the estate or allege that the sale was fraudulent.

p. 2
02

Whether the Plaintiffs established a prima facie case for a temporary injunction

Holding

They did not; the application was dismissed

Reasoning

Applying the established principles for interlocutory injunctions, the Plaintiffs failed to demonstrate a prima facie case with a probability of success. The Defendants held a grant confirmed by the succession court, and the Plaintiffs produced no letters of administration or grant evidencing their own interest in the suit land.

p. 2

Legal principles established

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    Court orders

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    1. 1.The Application dated 12th February, 2018 is dismissed with costs
    Jurisdiction invoked
    Original jurisdiction of the Environment and Land Court over land situate within Kitui County

    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, "Mathew Mwanza Makau & another v Gospel Assembly Fellowship Ministry & 2 others [2019] KEELC 3194 (KLR)", Case Analysis (2019). Application dated 12th February, 2018 (suit by Plaint dated 6th September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3194/eng@2019-05-24

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