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ELCDismissedNotice of Motion dated 11th November 2020 (ELC, Kerugoya)· [2021] KEELC 2599 (KLR)

Tabitha Wamutira Kinyua & another v Faith Nyawira Ng’anga (Sued as the Legal Representative of Gakuya Marira (Deceased)) & 3 others [2021] KEELC 2599 (KLR)

Environment and Land Court
11 June 2021
1,976 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling on the Plaintiffs' Notice of Motion dated 11th November 2020 seeking temporary injunction and prohibitory/inhibition orders against Land Parcel Nos. Mutira/Kathare/1103, 1104, 1105, 1126 and 1127, being resultant parcels from Land Parcel No. Mutira/Kathare/31. The Plaintiffs, siblings and grand-daughters of the deceased Gakuya Marira, contended that the distribution of the estate excluded them and that the 1st Defendant held their interests in trust as administratrix. They also alleged that despite pending succession proceedings, the Defendants were disposing of the properties. The Defendants opposed, asserting the estate had been distributed per Kikuyu custom following a confirmed grant, that the Plaintiffs' revocation application was dismissed on 19th May 2020, and that portions of the land had already been sold to third parties. Applying the Giella v Cassman Brown test as elaborated in Mrao Ltd and Kenya Commercial Finance Co. Ltd, the court held no prima facie case was established because the question of the Plaintiffs' interest had already been determined in the 19th May 2020 judgment, and the present application was not an appeal from it. The court further held that injunctions could not issue against portions already transferred to third parties who were not joined and against whom no fraud was proved, invoking the equitable maxim that equity does nothing in vain (Eric V.J. Makokha v Lawrence Sagini). The application was dismissed with costs to the Defendants on 11th June 2021.

Key legal issues

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01

Prima facie case with probability of success

Holding

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

Reasoning

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.

p. 3
02

Injunction against land transferred to third parties

Holding

Cannot issue absent proof of fraud or corruption and absent joinder of the third parties

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Plaintiffs' Notice of Motion dated 11th November 2020 is dismissed
  2. 2.Costs of the application to the Defendants

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40, Rule 1
  • Law of Succession Act, Cap 160Sections 2(1) and 2(2)

Cases cited (6)

  • Giella Vs Cassman Brown
    [1973] EA 358
  • Hassan Huri & another Vs Japhet Mwakala
    [2015] e K.L.R
  • Kenya Commercial Finance Co. Ltd Vs Afraha Education Society
    [2001] 1 EA 86
  • Mrao Ltd Vs First American Bank of Kenya and 2 Others
    {2003} e KLR
  • Moses Warui Gatimu Vs Douglas Mwai Machuru & another
    [2014] e KLR
  • Eric V.J. Makokha & 4 Others Vs Lawrence Sagini & 2 Others
    Civil Application No. 20 of 1994 (12/94 UR)
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

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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, "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.