Rose Wanjiru Ndegwa v Rachel Muthoni Wamutte & 2 others [2021] KEELC 1273 (KLR)
The bottom line
#A Kenyan land court froze any sale or transfer of three disputed parcels but let the defendants keep living on, farming and collecting rent from them.
What this practically means
#Executive summary
#Key legal issues
#Sub judice
The suit is not sub judice as the succession cause concerns distribution of Raphael's estate while this suit concerns title to the properties; no evidence of the alleged stay order was exhibited
The court distinguished the succession cause (distribution of the late Raphael's estate) from the present suit (title to suit lands, one title having issued in Oscar's name). The defendants alleged a stay order issued in the succession cause on 22/9/2020 but produced no evidence; applying 'he who alleges proves', the court disregarded the allegation and proceeded on the merits.
Temporary injunction
Prima facie case established; irreparable loss not shown, but balance of convenience favours preservation; only disposal-restraining and inhibition orders issued
Applying Giella and Nguruman, the court found a prima facie case with probability of success. Irreparable harm was not demonstrated since the claim concerns land and rental income compensable in damages. However, the balance of convenience favoured preserving the suit land, justifying an injunction against disposal and an inhibition on the register, but not orders barring entry, rent collection or development.
Account for rent
Refused at this stage
The prayer rested on the rectified certificate of confirmation of grant listing Oscar as beneficiary of LR 1317/240, but the court considered it unsafe to rely on the face value of that grant without prejudging the main suit. It also found no evidence Oscar received rental income before his demise.
Legal principles established
#- Where sub judice is raised on the basis of an existing order in another court, the party alleging must produce evidence of that order
- A suit concerning title to land arising from concluded succession proceedings is distinct from the succession cause itself and is not sub judice
- At the prima facie case stage the court does not conduct a mini-trial
- Conditions for grant of an order of inhibition
Court orders
#- 1.A temporary injunction restraining the 1st, 2nd and 3rd defendants from disposing of LR No Gaturi Gatimu/1915, LR 1317/240 Gilgil Township and Gilgil/Karunga Block 10/270 pending the hearing and determination of the suit
- 2.An order of inhibition inhibiting the registration of any dealings on the register of LR No Gaturi Gatimu/1915, LR 1317/240 Gilgil Township and Gilgil/Karunga Block 10/270 pending the hearing and determination of the suit
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Orders 40, 20 and 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Wanjiru Ndegwa v Rachel Muthoni Wamutte & 2 others [2021] KEELC 1273 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 21/5/2021 within a suit at ELC Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1273/eng@2021-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.