Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment text provided· [2019] KEELC 3650 (KLR)

Mercy Wanjiru Mburu v Elizabeth Wanjira Evans & 8 Others [2019] KEELC 3650 (KLR)

Environment and Land Court
3 April 2019
2,280 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court froze three Nakuru land parcels because family land was allegedly sold without a co-owner's consent.

What this practically means

#

Executive summary

#
The plaintiff/applicant, claiming to be a daughter of the late John Mburu and a beneficiary of the estate of the late Rahab Wanjiru Evans as distributed by the Court of Appeal in Nakuru Civil Appeal No. 221 of 2007, moved the Environment and Land Court at Nakuru by a notice of motion dated 19 April 2018, filed contemporaneously with her plaint, seeking an injunction restraining the defendants from dealing with land parcels Nakuru Municipality Block 7/542, 545 and 546 pending the hearing of the suit. She sought a declaration of co-ownership, cancellation of the 8th respondent's title, vacant possession, and costs. The 2nd respondent supported the application; the 4th-7th respondents contended the dispute concerned the estate of John Mburu, questioned the applicant's paternity and locus standi, and asserted that the properties were gifted or sold pursuant to family decisions; the 8th respondent, Menengai Oil Refineries, asserted it purchased plot 542 for Kshs. 7,000,000/= and relied on an alleged settlement involving the applicant's advocates; the 9th respondent, Deliverance Church, did not enter appearance. A preliminary objection on jurisdiction had already been dismissed on 11 October 2018. The court, Munyao Sila J, held that the Court of Appeal had recognized the applicant as a child of John Mburu and distributed the suit properties to his children jointly; it could not revisit that distribution. No sale agreement or written consent of the applicant was shown. The applicant established a prima facie case with probability of success and stood to suffer irreparable loss if the properties were further dealt with or developed. The court allowed the application, issuing an order of inhibition over the three parcels and two orders of injunction against sale, charging, leasing, dealing and development, and awarded costs of the application against the 1st, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents.

Key legal issues

#
01

Whether the applicant established a prima facie case for the grant of an injunction

Holding

Yes. The suit properties were distributed to the applicant jointly with the 4th-7th respondents by the Court of Appeal, and no consent or sale agreement executed by the applicant was shown to justify the transfers.

Reasoning

The Court of Appeal had distributed the suit properties to the children of the late John Mburu, including the applicant, whose status as a child the Court of Appeal had already recognized and which this court had no jurisdiction to question. Since the applicant was a co-beneficiary, the properties could not be sold or transferred without her signature or written consent. No such consent or sale agreement was shown, and her denial of instructing Mr. Simiyu was unrebutted at this stage. A prima facie case with probability of success was therefore made out.

p. 2
02

Whether the applicant stands to suffer irreparable loss if the injunction is not granted

Holding

Yes. There is a risk the properties may be dealt with or developed, causing irreparable loss.

Reasoning

The court found that unless restrained, the respondents and third parties would continue to dispose of, deal with, or develop the suit properties. Development of structures on the land would render any eventual declaration in the applicant's favour nugatory, as the harm could not adequately be compensated in damages. The court thus found the second Giella principle satisfied and granted both injunctive relief and an inhibition to preserve the register pending the hearing and determination of the suit.

p. 2

Legal principles established

#
  • Where property has been distributed to several beneficiaries, one beneficiary cannot dispose of the property without the consent of the others; a prima facie case for injunction is established where the co-beneficiary has not signed any sale agreement or given written consent.
  • The principles for granting an interlocutory injunction are that the applicant must demonstrate a prima facie case with probability of success, irreparable loss, and failing which, the court decides on a balance of convenience.

Court orders

#
  1. 1.Order of inhibition inhibiting the registration of any disposition in the registers of land parcels Nakuru Municipality Block 7/542, 7/545 and 7/546 until the case is finalized
  2. 2.Order of injunction stopping the respondents from selling, charging, leasing or in any other way dealing with the properties Nakuru Municipality Block 7/542, 7/545 and 7/546 until the case is heard and determined
  3. 3.Order of injunction barring the respondents from undertaking any development of any structure in the land parcels Nakuru Municipality Block 7/542, 7/545 and 7/546 until the case is heard and determined
  4. 4.Costs of the application awarded to the applicant against the 1st, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution); no specific provision cited in the judgment text

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mercy Wanjiru Mburu v Elizabeth Wanjira Evans & 8 Others [2019] KEELC 3650 (KLR)", Case Analysis (2019). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3650/eng@2019-04-03

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