Canon Macrine Adhiambo Owiti (Suing in her capacity as the Executor of the Estate of the late Martin Owiti Odero – Deceased) v Erasmus Kimathi Muriuki & another; Kenya Commercial Bank Limited (Interested Party) [2021] KEELC 2915 (KLR)
The bottom line
#A Kenyan court blocked further dealings on disputed land, ruling that a property transferred after its owner died is legally vulnerable and must be preserved.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
Yes - the claim over the suit land is not baseless; the transfer was registered after the deceased died and the 1st Defendant furnished no transfer forms or land control board documentation
The court noted the land was owned by the deceased husband of the Plaintiff, who is executor of his estate with a Certificate of Confirmation of Grant. Although the 1st Defendant produced a sale agreement dated 2014, the registration occurred in 2018 after the deceased's death in 2015, and he failed to produce transfer forms, land control board documentation, or evidence of developments on the land. On these materials the court found an apparent infringement of the Plaintiff's rights as executor.
Whether the Plaintiff would suffer irreparable loss not compensable by damages
Yes - her injuries are actual and substantial, not speculative, as she has been in occupation of land whose title is held by the 1st Defendant and charged to the Interested Party
Applying Nguruman Ltd v Jan Bonde Nielsen, the court required the applicant to demonstrate actual, substantial and demonstrable injury incapable of adequate compensation in damages. The 1st Defendant did not controvert the Plaintiff's averments of developments on the land (greenhouse farming, caretaker structure, water tank). Given the charge of Kshs 3,500,000 to the Interested Party and risk of exercise of the statutory power of sale, the court found the injury properly founded.
Where the balance of convenience lies
It tilts in favour of the Plaintiff, since if the title is not preserved the property may be wasted away
The court weighed the parties' evidence and concluded that preservation of the title was necessary to prevent the property from being wasted, given the charge in favour of the Interested Party and the risk of further facilities being drawn against the suit land. It therefore found the balance of convenience in the Plaintiff's favour and issued an inhibition order rather than a bare injunction.
Legal principles established
#- A prima facie case is one in which, on the material presented, the court will conclude there is an apparent infringement of the applicant's rights
- An injury is irreparable where it cannot adequately be compensated by an award of damages
Court orders
#- 1.The Land Registrar Kajiado North directed to register an inhibition order against land parcel number NGONG/NGONG/27691 against any dealings, lease or charge pending the hearing and determination of the suit
- 2.The Defendants and Interested Party restrained from interfering with the land parcel number NGONG/NGONG/27691 pending the hearing and determination of the suit
- 3.Costs of the application awarded to the Plaintiff, to be borne by the 1st Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcel NGONG/NGONG/27691; interlocutory application under the court's inherent powers (no specific provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Canon Macrine Adhiambo Owiti (Suing in her capacity as the Executor of the Estate of the late Martin Owiti Odero – Deceased) v Erasmus Kimathi Muriuki & another; Kenya Commercial Bank Limited (Interested Party) [2021] KEELC 2915 (KLR)", Case Analysis (2021). Notice of Motion dated 13th August, 2019 (suit re: land parcel NGONG/NGONG/27691). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2915/eng@2021-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.