Maryanne Chepkorir & another v Nyoike Njenga Hinga & 4 others [2021] KEELC 1478 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a prima facie case was established
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
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.
Whether damages would be an adequate remedy
No injunction could issue because damages would adequately compensate the applicants if the acquisition was later found invalid
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.
Joint proprietorship and right of survivorship (defendants' case)
The defendants maintained that the 2005 transfer to joint proprietors caused the property to vest in the survivor, defeating the testamentary gift by ademption
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.
Legal principles established
#- 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
#- 1.Notice of Motion dated 3rd March 2020 dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- not stated in the judgment (interlocutory application pending hearing of the suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.