Mibey v Lomson Enterprise & 6 others; Chief Land Registrar (Interested Party) (Civil Suit 21 of 2023) [2024] KEELC 3653 (KLR)
The bottom line
#A Kenyan court dismissed a widow's bid to stop land dealings because she offered no documents proving ownership or fraud.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with probability of success
No prima facie case was established; the applicant's affidavit was bereft of supporting evidence while the respondents' documents showed parcel 64 belongs to the 5th Respondent and parcel 21 to the applicant's husband
The court examined the affidavits and annexures. The applicant alleged that the suit property was matrimonial property fraudulently disposed of, but attached no documents. The respondents produced green cards and auction records showing parcel 64 arose from parcel 22 (auctioned after the 3rd Respondent's loan default) and is registered to Andrew Koskei, while parcel 21 is registered to Noah Kipchumba. Under Section 107 of the Evidence Act the applicant bore the burden of proof and did not discharge it.
Whether irreparable injury and balance of convenience needed consideration
Not necessary, as the first hurdle failed; the court nonetheless noted that charged property's loss is compensable by damages
Applying Nguruman, the court held the three Giella conditions are sequential hurdles; having failed the first, the second and third fell away. It observed obiter that property offered as security, even matrimonial property, stands the risk of sale on default and any loss is remediable by damages.
Whether the applicant could enforce the sale agreement between her husband and the 3rd Respondent
No; only parties to the contract can sue on it, and the claim for money owed belongs to Noah Kipchumba
The court noted that the agreement underlying the claim was between Noah Kipchumba and the 3rd Respondent, and its terms could not be ascertained as it was not before the court. Strangers to a contract cannot interfere with or enforce it, and courts do not rewrite contracts.
Legal principles established
#- An applicant for a temporary injunction must sequentially establish a prima facie case, irreparable injury not compensable by damages, and balance of convenience; failure at the first hurdle ends the enquiry
- Once property is charged to a bank as security, loss on sale is remediable by damages and does not support an injunction
- Only parties to a contract are bound by it; courts will not rewrite contracts
Court orders
#- 1.The Notice of Motion dated 21st July 2023 is dismissed
- 2.Costs of the application to the Respondents
- Jurisdiction invoked
- Sections 63(e) of the Civil Procedure Act, Sections 2 & 5 of the Access to Information Act, Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Umagara Wiyonere Company Limited v Samora & another (Environment and Land Case E142 of 2023) [2025] KEELC 6161 (KLR)[2025] KEELC 6161 (KLR)24 Sept 2025
- Ethics and Anti-Corruption Commission v Tum (Administrator of the Estate of Nathaniel Kipkorir Tum) & another; Board of Management Kitale School Primary & another (Interested Parties) (Environment and Land Case E020 of 2023) [2025] KEELC 5157 (KLR)[2025] KEELC 5157 (KLR)9 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Mibey v Lomson Enterprise & 6 others; Chief Land Registrar (Interested Party) (Civil Suit 21 of 2023) [2024] KEELC 3653 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 21st July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3653/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.