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ELCPartially AllowedNotice of Motion dated 21st November 2019 in the pending suit· [2020] KEELC 1929 (KLR)
Philipine Wambogo Kibuchi, Thomas Murage Kibuchi, Siethelina Wanjiru Kibuchi, Rachel Wanjiru Kibuchi, Bibiana Michere Kibuchi & Arch Angel Mwai Kibuchi v Mary Wanjiru (Sued in her personal capacity and as the administrator of the Estate of Karira Karolina alias Karira Kibuchi), Lydia Wachora Karira, Angekina Wanjiku Karira, Charles Gichira Karira, Anastasia Wambui Karira, Auralia Njoki Karira, Penina Wangithi Karira, Francis Warui Karira, John Muriuki Karira, Joseph Mbiti Karira & Veronica Muthoni Karira (Environment & Land Case 49 of 2019) [2020] KEELC 1929 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#A Kenyan court blocked a family from selling disputed clan land, even though the other side held a registered title from a succession cause.
What this practically means
#Executive summary
#This is an interlocutory ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) on a Notice of Motion dated 21st November 2019 brought under Order 40 Rules 1 & 2 and Order 51 Rule 1 CPR. The plaintiffs, siblings of the late Karolino Karira Kibuchi (registered proprietor of parcel MWERUA/KIANDA/48, who died in 2016), sought a temporary injunction and inhibition against the defendants - the deceased's widow (the 1st defendant, his administrator) and her children - restraining them from selling, sub-dividing, transferring or alienating the suit land, which they claim is held in Kikuyu customary trust for the family. They allege the defendants secretly filed Wanguru PMCC Succession Cause No. 8 of 2018, transmitted the land to themselves, demolished the plaintiffs' structures, evicted their sister and brother, and threaten to sell to third parties. The defendants opposed, asserting the siblings had moved to their own properties and that no prima facie case was established. The court found the prima facie case ground fell away since the official search showed the property had been sub-divided and transferred through the succession cause. However, it held the applicants' fears of irreparable loss of clan land of sentimental value were not idle, found the balance of convenience tilted in their favour, and invoked the lower-risk-of-injustice principle (Films Rover International, applied in Amir Suleiman v Amboseli Resort) and the doctrine of lis pendens (Mawji v US International University; Section 107 of the Land Registration Act). The application was allowed: the interim injunction issued on 21st November 2019 was confirmed pending trial, with costs to abide the event.
Key legal issues
#01
Whether a temporary injunction could issue over land already transmitted to the defendants through succession proceedings
Holding
Although the prima facie case ground failed because the property had been sub-divided and transferred to the defendants, the injunction was granted on the balance of convenience and the doctrine of lis pendens
Reasoning
The court applied Section 26 of the Land Registration Act recognizing the defendants' prima facie title, then found the applicants' fear of alienation to third parties real: they would suffer irreparable loss of sentimental clan land. Relying on the lower-risk-of-injustice principle from Films Rover International and lis pendens under Section 107 of the Land Registration Act and Section 52 of the TPA, the court preserved the subject matter pending trial.
p. 3
Legal principles established
#- A certificate of title under Section 26 of the Land Registration Act is prima facie evidence, but interim relief may still issue where the balance of convenience and lis pendens favour preservation of the suit property
- Where the court is in doubt, it should take whichever course carries the lower risk of injustice
Court orders
#- 1.The temporary injunction orders issued on 21st November 2019 are confirmed pending the hearing and determination of the suit
- 2.The costs of the application to abide the event
- Jurisdiction invoked
- Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules (injunctive relief in a land dispute before the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philipine Wambogo Kibuchi, Thomas Murage Kibuchi, Siethelina Wanjiru Kibuchi, Rachel Wanjiru Kibuchi, Bibiana Michere Kibuchi & Arch Angel Mwai Kibuchi v Mary Wanjiru (Sued in her personal capacity and as the administrator of the Estate of Karira Karolina alias Karira Kibuchi), Lydia Wachora Karira, Angekina Wanjiku Karira, Charles Gichira Karira, Anastasia Wambui Karira, Auralia Njoki Karira, Penina Wangithi Karira, Francis Warui Karira, John Muriuki Karira, Joseph Mbiti Karira & Veronica Muthoni Karira (Environment & Land Case 49 of 2019) [2020] KEELC 1929 (KLR)", Case Analysis (2020). Notice of Motion dated 21st November 2019 in the pending suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1929/eng@2020-06-05
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