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ELCOtherNot stated in the judgment· [2021] KEELC 1126 (KLR)

Nabaro Kariankei & another v Jane Wambui Kamoye & 3 others [2021] KEELC 1126 (KLR)

Environment and Land Court
10 November 2021
CMC. G. Mbogo
2,966 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to block a land sale because the applicants lacked evidence, but froze the situation as it was when the case started.

What this practically means

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Executive summary

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Before the Environment and Land Court were two Notices of Motion by Nabaro Kariankei and Sanare Ole Kariankei, administrators of the estate of Musana Kariankei (deceased). The application dated 9th October, 2019 sought temporary injunctions restraining the 1st respondent from dealing with Title No. Cis Mara/Ololulunga/12222 and the 3rd respondent from registering further dealings, on grounds that the 1st respondent connived with the 3rd respondent to fraudulently cancel the deceased's title CIS MARA/OLOLULUNGA/3890 and subdivide it into parcels 12222 and 12223, violating the applicants' constitutional right to property. The 1st respondent opposed, asserting she purchased 5 acres from the deceased under a sale agreement dated 2nd May, 2002 witnessed by the 1st applicant, and obtained title in 2007; she also disputed the date of the deceased's death. The second application dated 3rd June, 2021 sought directions and cited the applicants' eviction from parcel 7859. The 1st respondent termed it duplicative and an abuse of process. Applying the Giella v Cassman Brown principles, Mbogo J held that the applicants, though administrators, failed to demonstrate a prima facie case or irreparable loss not compensable in damages, noting the 1st applicant's thumb print on the sale agreement. The second application was found to be an abuse of court process for duplicating the pending first application. The court declined the injunctions but directed that status quo as at filing of the suit be maintained pending the substantive suit, with costs of both applications to abide its outcome. Delivered via email on 10th November, 2021.

Key legal issues

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01

Whether the applicants established a prima facie case and irreparable loss to warrant a temporary injunction over CIS MARA/OLOLULUNGA/12222

Holding

No; the applicants merely asserted their status as administrators and occupation without leading evidence to satisfy the Giella principles

Reasoning

The court applied the Giella v Cassman Brown test. Despite demonstrating they were administrators of the deceased's estate, the applicants did not lead evidence of a prima facie case or irreparable loss not compensable in damages. The balance of convenience also favoured the 1st respondent because the 1st applicant's thumb print witnessed the 2002 sale agreement underpinning her title.

p. 4
02

Whether the application dated 3rd June, 2021 was an abuse of court process

Holding

Yes; it raised the same issues between the same parties as the pending application dated 9th October, 2019

Reasoning

The second application introduced a different parcel (CIS MARA/OLOLULUNGA/7859) but relied on grounds similar to the first pending application. The court agreed with the 1st respondent that a litigant cannot litigate through a nearly similar application with the same parties and issues pending before the same court, and found the second application to be an abuse of process.

p. 4

Legal principles established

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  • The principles for grant of interlocutory injunctions are a prima facie case with chances of success, irreparable loss not compensable by damages, and balance of convenience if in doubt
  • A litigant may not litigate the same matter with the same parties and issues through duplicative applications before the same court
  • An applicant for injunction must make full and frank disclosure and show a right, legal or equitable, requiring protection

Court orders

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  1. 1.An order of status quo as at the time of filing the suit to issue pending the hearing and determination of the substantive suit
  2. 2.Costs of the two applications to abide the outcome of the substantive suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 43(1)(c)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rules 13 and 19
  • Civil Procedure RulesOrder 40 Rule 1
  • Law of Succession ActSection 45
  • Land Registration ActSections 25, 26(1)
  • Birth and Death Registration ActSection 21
  • Birth and Death (Late Registration) Rules, 1971Forms 3, 4 and 6

Cases cited (8)

  • Mrao –versus- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Korari Agencies Ltd –versus- Epco Builders Ltd
    (2013) eKLR
  • Joseph Siro Mosiomo –versus- Housing Finance Company of Kenya
    Nairobi HCCC No. 265 of 2007 (2008) eKLR
  • Virginia Edith Wambui –versus- Joash Ochieng Ougo
    Civil Appeal No. 3 of 1987 (1987) eKLR
  • Kipchirchir Kogo –versus- Frank Kimeli Tenai
    (2018) eKLR
  • Robert Mugo Wa Karanja –versus- Ecobank (Kenya) Ltd & Ano
    (2019) eKLR
  • Giella –versus- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Kenleb Cons Ltd –versus- New Gatitu Service Station Ltd & anor
Jurisdiction invoked
Article 40 of the Constitution and Rules 13 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

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, "Nabaro Kariankei & another v Jane Wambui Kamoye & 3 others [2021] KEELC 1126 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1126/eng@2021-11-10

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