Ngatho & another (Both Suing as Administrators of the Estate of Wanjiku Njau - Deceased) v Kigo & another
The bottom line
#A Nairobi court blocked an eviction and froze land dealings because the family in occupation held title documents and forgery claims need a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case
Yes - possession under title documents in the deceased's name shows a right threatened with violation
Both parties produced titles claiming ownership. The Applicants however showed possession of the suit property under title documents bearing the deceased's name. On the face of it they have a right of possession threatened with violation by the eviction notice. Forgery allegations could not be resolved at interlocutory stage.
Whether the Applicants would suffer irreparable harm not compensable in damages
Yes - permanent structures on the land require preservation of the suit property in its current state
The Applicants demonstrated occupation since 1981 under title documents in the deceased's name and permanent structures on the land. The court found it imperative to preserve the property in its current state so parties could ventilate their claims; the 1st Defendant did not explain when he lost possession.
Where the balance of convenience lies
It tilts in favour of the Applicants, who are in possession
The 1st Defendant cannot effect the eviction notice without a court order; even without injunction he would have to move the court appropriately. Preserving possession pending trial favours the Applicants, who are in occupation of the suit property.
Legal principles established
#- An applicant for an injunction need not establish title; it is enough to show a fair and bona fide question as to the existence of the right alleged, on a balance of probabilities
- Where both parties hold competing titles, allegations of forgery cannot be resolved at the interlocutory stage
Court orders
#- 1.Temporary injunction against the 1st Defendant restraining him, his agents and/or servants from evicting the Plaintiffs from the suit property, demolishing development thereon, or interfering with their occupation of LR.no 36/11/24 pending hearing and final determination of the suit
- 2.Temporary injunction against the 2nd Defendant restraining him from registering any dealings and/or making any entries in respect of LR.no 36/11/24 without notice to the Plaintiffs and/or the Court pending hearing and final determination of the suit
- 3.Costs of the application to abide the winner of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngatho & another (Both Suing as Administrators of the Estate of Wanjiku Njau - Deceased) v Kigo & another", Case Analysis (2023). Environment & Land Case E389 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20170/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.