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ELCDismissedNot stated in the judgment (plaint dated 26th May 2020)· [2020] KEELC 1702 (KLR)

Robert Njiru Njeru v Joseph Kimathi Njagi & another [2020] KEELC 1702 (KLR)

High Court of Kenya at Embu
16 July 2020
YAY.M. Angima
2,333 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a land buyer's injunction because you cannot buy estate land from a beneficiary before succession distribution is complete.

What this practically means

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Executive summary

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By a plaint and notice of motion dated 26th May 2020, the Plaintiff claimed that on 7th June 2016 he purchased 0.4 ha out of Title No. Gaturi/Nembure/88 from the Defendants for Kshs.400,000/-, paid in full, but the Defendants refused to transfer the portion. He sought declarations of constitutional violation and abuse of due process, general damages, and injunctions restraining alienation, interference with his occupation, and dealing with any parcels emanating from sub-division of the suit property. Both Defendants denied the transaction, asserting the Plaintiff was a stranger, that the land was not registered in the 1st Defendant's name, and that the sale agreement signature was a forgery. The court framed three issues: entitlement to injunctions, further or other relief, and costs. Construing the 'permanent' injunctions as interlocutory relief, the court applied the Giella v Cassman Brown test. It found no prima facie case: the suit property was registered in the name of a deceased person in Embu High Court Succession Case No. 654 of 2013, only the 2nd Defendant as administrator could lawfully deal with it under the Law of Succession Act, and the Plaintiff, who dealt only with the 1st Defendant (a beneficiary) before distribution and was not himself a beneficiary, could not halt the estate's distribution. The claim was also quantifiable in damages, so no irreparable injury was shown, and balance of convenience did not arise. No further or other relief was available. The motion was dismissed in its entirety with costs to the 1st and 2nd Defendants.

Key legal issues

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01

Prima facie case for injunction

Holding

Plaintiff failed to demonstrate a prima facie case with probability of success

Reasoning

The suit property remained registered in the name of the deceased in succession proceedings. Under the Law of Succession Act only the administrator (2nd Defendant) could lawfully deal with it. The Plaintiff dealt only with the 1st Defendant, a beneficiary, before distribution per the confirmed grant, and is not a beneficiary himself. The court declined to halt the estate distribution on that basis.

p. 3
02

Irreparable injury

Holding

No irreparable injury shown since the claim is quantifiable

Reasoning

The Plaintiff paid Kshs.400,000/- for the 0.4 ha, so the claim's value is known and compensable in damages. It was not shown the land was unique, peculiar, or of sentimental attachment such that an equivalent could not be found. Having failed the first two Giella principles, the balance of convenience did not arise.

p. 3
03

Characterisation of the injunction sought

Holding

The 'permanent' injunction sought was treated as a temporary injunction pending trial

Reasoning

Although the motion sought 'permanent' injunctions pending hearing and determination of the suit, the court construed this as an application for a temporary injunction, since a permanent injunction is a final remedy available only at the conclusion of a suit. The Giella test was therefore applied.

p. 2

Legal principles established

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  • A permanent injunction is a final remedy grantable only at the conclusion of a suit; interlocutory applications must be assessed under the temporary-injunction test.
  • Only the administrator of a deceased's estate may lawfully deal with estate property under the Law of Succession Act; a purchaser from a beneficiary before distribution has no claim against the administrator.
  • Costs follow the event under Section 27 of the Civil Procedure Act unless there is good reason to depart.

Court orders

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  1. 1.The Plaintiff's notice of motion dated 26th May 2020 is dismissed in its entirety
  2. 2.Costs of the application awarded to the 1st and 2nd Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 & 2
  • Land Control ActCap. 302
  • Law of Succession ActCap. 160
  • Civil Procedure ActSection 27 (proviso)
  • Constitution of KenyaNot specified

Cases cited (3)

  • Giella V Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao V First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original civil jurisdiction (plaint/notice of motion under Order 40 Rules 1 & 2 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, "Robert Njiru Njeru v Joseph Kimathi Njagi & another [2020] KEELC 1702 (KLR)", Case Analysis (2020). Not stated in the judgment (plaint dated 26th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1702/eng@2020-07-16

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