Tabitha Wamutira Kinyua & another v Faith Nyawira Ng’anga (Sued as the Legal Representative of Gakuya Marira (Deceased)) & 3 others [2021] KEELC 2599 (KLR)
The bottom line
#A Kenyan land court refused to protect family members' inheritance claims because their case had already been decided and the land was already sold to new owners.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case with probability of success
Not established - the Plaintiffs' claimed interest in the suit land was already litigated and determined in the 19th May 2020 judgment dismissing their revocation of grant application
The prior succession judgment applied Sections 2(1) and 2(2) of the Law of Succession Act, holding that Kikuyu custom at the time of death in 1959 excluded married women from inheriting land, and found the revocation application time-barred. As the present application is not an appeal from that judgment, the Plaintiffs could not demonstrate an apparently infringed right warranting explanation or rebuttal by the Defendants.
Injunction against land transferred to third parties
Cannot issue absent proof of fraud or corruption and absent joinder of the third parties
The parties agreed portions of the suit land had been sold and transferred to third parties who are now registered proprietors. The court, citing Moses Warui Gatimu, held it is a rare case to injunct a registered owner; moreover the third parties were not enjoined in the case, so any order would be in vain under the equitable maxim that equity does nothing in vain.
Legal principles established
#- The Giella three-part test is all-inclusive; failure of the first limb (prima facie case) disposes of the injunction application
- Equity will not grant an injunction that cannot be effective or enforced
Court orders
#- 1.The Plaintiffs' Notice of Motion dated 11th November 2020 is dismissed
- 2.Costs of the application to the Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; application brought under Order 40 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tabitha Wamutira Kinyua & another v Faith Nyawira Ng’anga (Sued as the Legal Representative of Gakuya Marira (Deceased)) & 3 others [2021] KEELC 2599 (KLR)", Case Analysis (2021). Notice of Motion dated 11th November 2020 (ELC, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2599/eng@2021-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.