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ELCDismissedNot stated in the judgment· [2024] KEELC 3919 (KLR)

Anthony Mburu Wanyoike & Peter Wanyoike Mburu v John Brown Ndungu Ikenye

Environment and Land Court
15 May 2024
AOA O Ombwayo
566 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru dismissed an attempt to freeze three properties because it was filed under the wrong legal procedure, with costs awarded against the applicants.

What this practically means

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Executive summary

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The applicants, Anthony Mburu Wanyoike and Peter Wanyoike Mburu, executors of the estate of the late Josphat Mburu Wanyoike, applied for orders of inhibition restraining any dealings with three properties belonging to the respondent: Nakuru/Langalanga/Block 1/209, Kabatini/Block 1/1140 and Nakuru Municipality/Block 17/23. They sought to preserve the properties pending advertisement and sale in execution of a decree issued by the Family Division of the High Court in Nairobi in HCSC 64 of 2010, by which they claim judgment against the respondent of Kshs276,392,703, accruing interest. The respondent opposed, submitting that the applicants had not laid a basis for arriving at the claimed sum, had not rendered accounts on how proceeds of earlier court-ordered sales were applied, and that the decree had been settled with the proceeds of those sales. The court considered the application and the replying affidavit and held that the application lacked merit. Although brought under Order 37(1) of the Civil Procedure Rules, it did not fall within the ambit of Order 37 rule 1(a)-(g), which enumerates the matters - such as questions affecting creditors, furnishing of accounts, payment into court and directions to executors - in which originating summons may be taken out. The court found that the application raised no question of law for determination under Order 37 rule 1. The application was accordingly dismissed with costs.

Key legal issues

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01

Whether an application for inhibition premised on a decree for sale of the respondent's properties could properly be brought by originating summons under Order 37 rule 1 of the Civil Procedure Rules, 2010

Holding

The application was incompetent as it did not fall within Order 37 rule 1(a)-(g) and raised no question for determination under that rule; it was dismissed with costs

Reasoning

The applicants, as executors of the estate of the late Josphat Mburu Wanyoike, sought to preserve properties pending advertisement and sale in execution of a decree of Kshs276,392,703 issued in HCSC 64 of 2010. The respondent opposed, contending the decree had been settled from earlier court-ordered sales. The court examined the enumerated matters in Order 37 rule 1(a)-(g) and found the application did not fit within any of them and disclosed no question of law for determination, hence dismissal.

p. 1

Legal principles established

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  • An application that does not fall within the matters enumerated in Order 37 rule 1(a)-(g) of the Civil Procedure Rules cannot be sustained under that provision, as it raises no question of law for determination thereunder

Court orders

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  1. 1.The application is dismissed with costs
Jurisdiction invoked
Order 37 rule 1 of the Civil Procedure Rules, 2010 (originating summons procedure)

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, "Anthony Mburu Wanyoike & Peter Wanyoike Mburu v John Brown Ndungu Ikenye", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3919/eng@2024-05-15

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