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ELCAllowedNot stated in judgment· [2021] KEELC 3434 (KLR)

Rebecca Dola Miguda v Munyao Kioko Mangeli & another (being the Personal Representatives of the estate of the Dr.Kioko Mangeli (Deceased)) [2021] KEELC 3434 (KLR)

Environment and Land Court
29 April 2021
EOE. O. Obaga
965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court stopped a widow from selling two Karen properties because the late Dr Mangeli's estate showed they were jointly bought during marriage.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 2nd February 2021 by the administrators of the estate of the late Dr Kioko Mangeli seeking a temporary injunction against his former wife, the Respondent, from selling, disposing of, wasting or alienating LR No.12778/156 and LR No.12778/157 in Karen, with the structures thereon, pending hearing of the suit. The properties were jointly purchased during the marriage but registered in the Respondent's name; the parties divorced on 1st July 2014. The Respondent later obtained injunctive orders against the deceased in a suit filed 30th April 2018, and had brought an earlier originating summons under Section 17 of the Matrimonial Property Act 2013. The Applicants contended the Respondent had advertised one property for sale and others for letting, to the detriment of the deceased's beneficiaries. The Respondent opposed, arguing the Applicants approached the wrong court and should have gone to the Family Division of the High Court on succession grounds. Obaga J framed a single issue: whether the Applicants had demonstrated a prima facie case. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found the joint purchase and the Respondent's advertisements established an apparent right requiring rebuttal, and that sale would cause the Applicants irreparable harm. The court allowed the application in terms of prayers (c) and (d), granting the injunction, with costs and an undertaking as to damages within 7 days.

Key legal issues

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01

Whether the Applicants demonstrated a prima facie case warranting a temporary injunction

Holding

Yes. Joint purchase of the properties and the Respondent's advertisements for sale and letting showed an apparent right of the Applicants/beneficiaries at risk.

Reasoning

Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found the Applicants had shown the two Karen properties were jointly purchased by the deceased and the Respondent, and that the Respondent had advertised one for sale and others for letting. If sold and proceeds used solely by the registered owner, the Applicants and beneficiaries would suffer irreparable harm, justifying an injunction.

p. 2

Legal principles established

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  • The principles for grant of a temporary injunction are the Giella v Cassman Brown test: prima facie case with probability of success, inadequacy of damages, and balance of convenience.
  • A prima facie case is one in which, on the material presented, the court concludes that there exists a right apparently infringed so as to call for an explanation from the opposite party.

Court orders

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  1. 1.Temporary injunction restraining the Plaintiff/Respondent, her agents, servants or any other person from selling, disposing of, removing, wasting and/or alienating LR No.12778/156 and LR No.12778/157, including structures thereon, pending hearing and determination of the suit
  2. 2.Costs of the application provided for
  3. 3.Applicants to file a suitable undertaking as to damages within 7 days

Authorities

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Legislation

  • Matrimonial Property ActSection 17

Cases cited (2)

  • Giella Vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit properties (no specific provision invoked)

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, "Rebecca Dola Miguda v Munyao Kioko Mangeli & another (being the Personal Representatives of the estate of the Dr.Kioko Mangeli (Deceased)) [2021] KEELC 3434 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3434/eng@2021-04-29

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