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ELCDismissedNotice of Motion dated 3rd March 2020 (suit property L.R No. 9216)· [2021] KEELC 1478 (KLR)

Maryanne Chepkorir & another v Nyoike Njenga Hinga & 4 others [2021] KEELC 1478 (KLR)

Environment and Land Court
21 October 2021
1,868 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land court refused to freeze a KSh 397 million property sale because money damages could compensate the family if the sale later proved invalid.

What this practically means

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Executive summary

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By Notice of Motion dated 3rd March 2020, the plaintiffs, through Maryanne Chepkorir as administrator of the estate of Tony Hinga Njenga, sought a temporary injunction restraining the defendants from selling, leasing, occupying, allocating, transferring or subdividing L.R No. 9216 pending trial. The applicants asserted that Benard Njenga Hinga bequeathed the suit property to Tony Hinga under a will; that the property remained an asset in the pending Nairobi H.C Succession Cause No. 796 of 2007; and that the property was transferred on the basis of forged documents and while still charged to AFC, and that the 4th defendant intended to subdivide it for settlement of third parties. The defendants countered that Benard Njenga Hinga had in 2005 transferred the property to his wife and himself as joint proprietors, so that on his death it vested in the survivor by right of survivorship, the testamentary gift failing by ademption; the executor thereafter transferred it to the sole beneficiary, who discharged the charge and sold it to the 4th respondent, a state corporation, for KShs 396,984,000 for resettlement of IDPs. The application was withdrawn against the 1st and 2nd defendants on 31st May 2021. Applying the Giella v Cassman Brown test as restated in Nguruman, the court found a prima facie case since the validity of the transfers was a bona fide question for trial. However, it held that damages would adequately compensate the applicants because the 4th respondent, a government entity, could pay the money value of the property. The second limb of the test failed and the balance of convenience did not arise. The court dismissed the motion with costs in the cause.

Key legal issues

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01

Whether a prima facie case was established

Holding

Yes - the applicants showed the property was owned by Benard Njenga Hinga and its listing in the pending succession cause raised a bona fide question as to the validity of the transfers

Reasoning

The court noted the suit property was at some point owned by the late Benard Njenga Hinga and was listed among assets for distribution in the pending Nairobi succession cause. Whether the alleged transfers were lawful and valid had to be determined at trial. That sufficed to show a bona fide question regarding existence of a right and a threat thereto, without a mini-trial.

p. 3
02

Whether damages would be an adequate remedy

Holding

No injunction could issue because damages would adequately compensate the applicants if the acquisition was later found invalid

Reasoning

The 4th respondent purchased the property for KShs 396,984,000 and, being a state corporation, the government could pay the money value of the property if its acquisition proved invalid. The public purposes of the acquisition (resettlement of IDPs) reinforced adequacy of damages, defeating the second limb of the Giella test.

p. 3
03

Joint proprietorship and right of survivorship (defendants' case)

Holding

The defendants maintained that the 2005 transfer to joint proprietors caused the property to vest in the survivor, defeating the testamentary gift by ademption

Reasoning

The executor deposed that Benard Njenga Hinga transferred the suit property to his wife and himself as joint proprietors in 2005; on his death the property vested in the survivor by right of survivorship, the gift under the will failed by ademption, and the executor then validly transferred the property to the sole beneficiary who sold to the 4th respondent. The court left these questions for trial.

p. 2

Legal principles established

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  • The three Giella v Cassman Brown conditions are sequential hurdles; if a prima facie case is not established, irreparable injury and balance of convenience need no consideration
  • A prima facie case is more than an arguable case and must show an infringement of a right with probability of success
  • In an interlocutory injunction application the court must not conduct a mini-trial or closely examine the merits

Court orders

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  1. 1.Notice of Motion dated 3rd March 2020 dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Agriculture Act (repealed)Section 167
  • Agriculture and Food Authority Act, 2013Section 3

Cases cited (3)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
Jurisdiction invoked
not stated in the judgment (interlocutory application pending hearing of the suit)

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, "Maryanne Chepkorir & another v Nyoike Njenga Hinga & 4 others [2021] KEELC 1478 (KLR)", Case Analysis (2021). Notice of Motion dated 3rd March 2020 (suit property L.R No. 9216). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1478/eng@2021-10-21

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