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ELCDismissedNotice of Motion dated 11th April 2018 (ELC suit property Kilifi/Ngerenyi/1492)· [2019] KEELC 4086 (KLR)

Karisa Mbogo Konde (Suing for and on Behalf of the Estate of Mbogo Konde Tuva (Deceased) v Kang’ombe John Charo & another [2019] KEELC 4086 (KLR)

Environment and Land Court
28 March 2019
JOJ.O. Olola
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to stop a disputed land sale because the claimant couldn't prove his family's right to the property.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Malindi by Notice of Motion dated 11th April 2018 seeking an interlocutory injunction to restrain the Defendants from trespassing on, encroaching, cultivating or dealing with parcel Kilifi/Ngerenyi/1492, with enforcement by the OCS Kilifi Police Station. The Plaintiff claimed his father and the 1st Defendant's husband (his uncle) jointly tilled the original land, that the land had been registered in the uncle's name using the father's tax card contrary to instructions, and that after the uncle's death the 1st Defendant secretly obtained letters of administration and transferred and sold the land, including to the 2nd Defendant. The 1st Defendant denied the claim, asserting the estate was administered in Kilifi SPM Succession Cause No. 48 of 2011 without objection, that the suit property arose from sub-division of Kilifi/Ngerenyi/632 registered in her late husband's name, and that the Plaintiff's father's estate was separately administered in Malindi High Court Succession Cause No. 126 of 2012. Applying Giella v Cassman Brown and Nguruman Ltd v Jan Bonde Nielsen, the court held the Plaintiff failed at the first hurdle: the suit property did not exist when the two brothers died, nothing proved the father's entitlement to half the original parcel, and the Plaintiff's confirmed grant did not list the suit property. Citing Mrao Ltd v First American Bank, the court found no apparently infringed right. The application was dismissed with costs to the 1st Defendant on 28th March 2019.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

No prima facie case - the Plaintiff failed to demonstrate an apparent right infringed by the Defendants

Reasoning

The suit property was only registered on 21st February 2018 following sub-division of the original parcel Kilifi/Ngerenyi/632, which was registered in the 1st Defendant's deceased husband's name. Nothing showed the Plaintiff's father's entitlement to half the original parcel or his use of it. The Certificate of Confirmation of Grant in the father's succession cause did not list the suit property. Applying Mrao Ltd v First American Bank, no apparently infringed right was shown.

p. 2
02

Whether the succession and transfer of the suit property by the 1st Defendant was irregular

Holding

Matters concerning the estate were dealt with in Kilifi SPM Succession Cause No. 48 of 2011 without objection, and the two estates are separate and distinct

Reasoning

The 1st Defendant averred, uncontradicted on the material before the court, that the estate of her deceased husband was administered in Kilifi Succession Cause No. 48 of 2011 with all sub-divided parcels registered to him, and that the Plaintiff's father's estate was handled in Malindi High Court Succession Cause No. 126 of 2012. The Plaintiff's confirmed grant did not include the suit property.

p. 1

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience if in doubt
  • The Giella conditions are sequential hurdles which the applicant must surmount in order

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 11th April 2018 is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant

Authorities

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Cases cited (3)

  • Giella –vs– Cassman Brown & Company Ltd
    (1973) EA 360
  • Nguruman Ltd –vs– Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012
  • Mrao Ltd -vs- First American Bank of Kenya Ltd
    (2003) KLR 125
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory injunctions (Giella v Cassman Brown), Environment and Land Court

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, "Karisa Mbogo Konde (Suing for and on Behalf of the Estate of Mbogo Konde Tuva (Deceased) v Kang’ombe John Charo & another [2019] KEELC 4086 (KLR)", Case Analysis (2019). Notice of Motion dated 11th April 2018 (ELC suit property Kilifi/Ngerenyi/1492). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4086/eng@2019-03-28

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