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ELCAllowedBungoma ELC Case No. E002 of 2023· [2024] KEELC 4822 (KLR)

Natembeya (As legal representatives of the Estate of Peter Natembeya Wenani) & another v Wenani & 4 others (Environment & Land Case E002 of 2023) [2024] KEELC 4822 (KLR)

Environment and Land Court
20 June 2024
4,522 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze all dealings on disputed family land in Bungoma, confirming that heirs can sue to protect ancestral property even without formal succession.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (E.C Cherono, ELC Judge) on a Notice of Motion dated 1st March 2023 by the plaintiffs/applicants, together with a Notice of Preliminary Objection dated 23rd March 2024 by the defendants/respondents. The applicants, beneficiaries of the estate of Wilson Wenani, the original owner of Malakisi North & Central Namwela/134, sought inhibition and temporary injunction orders over resultant parcels 1301, 1302, 1303, 1428 and 1429, alleging that the 1st-4th respondents' father fraudulently registered the original parcel without succession, subdivided it, and sold parcels to the 5th respondent, a co-operative society. The preliminary objection raised lack of locus standi, sub judice and res judicata relative to Sirisia ELC Case No. E009 of 2021, and the alleged incapacity of the 5th defendant to be sued. The court dismissed the objection, holding the applicants had legal standing as beneficiaries; that the sub judice plea required factual interrogation and lacked supporting pleadings; that the res judicata requirements under Section 7 were unmet; and that a co-operative society under Section 12 of the Co-operative Societies Act is a body corporate capable of being sued. On the motion, the respondents filed no replying affidavit, leaving the applicants' averments uncontroverted. Finding a real danger of further alienation, irreparable harm to the applicants as residents of the ancestral land, and the balance of convenience in their favour, the court issued the inhibition order over the suit parcels and a temporary injunction restraining the 5th respondent from parcels 1302 and 1429, and awarded costs of the application to the applicants. Judgment dated 20th June 2024 at Bungoma.

Key legal issues

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01

Locus standi of the applicants

Holding

The applicants, as beneficiaries of the estate of Wilson Wenani through their fathers, have a recognizable legal interest and capacity to institute the suit

Reasoning

The applicants sue as beneficiaries of the estates of Javan Waliula Wenani and Peter Natembeya Wenani, sons of Wilson Wenani, the original registered owner of Malakisi North & Central Namwela/134. Their claim is that the land was fraudulently transferred to the 1st-4th respondents' father and subsequently subdivided and disposed of. Having a right to protect over the property, they possess a vested or contingent legal interest above that of the general public, conferring standing.

p. 5
02

Whether the suit is sub judice Sirisia ELC Case No. E009 of 2021

Holding

The sub judice objection fails: pleadings from the Sirisia case were not supplied, and the subject matters differ; further, the issue requires probing of evidence and is not a pure point of law

Reasoning

The respondents relied only on a ruling from the Sirisia case, not its pleadings. The Sirisia case concerned parcel 1300 while this suit claims parcels 1301, 1302 and 1303. Since ascertaining whether the suits are identical requires examining facts and evidence, the objection does not meet the Mukisa Biscuits threshold for a preliminary objection and was dismissed.

p. 6
03

Whether the application is res judicata the ruling of 15th December 2021 in the Sirisia case

Holding

None of the requirements of Section 7 of the Civil Procedure Act were established

Reasoning

The court examined the four corners of Section 7: same matter in issue, same parties or those under whom they claim, same title, competent court, and final decision. On examination of the objection as pleaded, the court found none of these requirements met, while noting the issues may parallel those in the Sirisia suit whose status was not disclosed.

p. 6
04

Capacity of the 5th defendant (a co-operative society) to be sued

Holding

The 5th defendant, governed by the Co-operative Societies Act CAP 490, is a body corporate capable of being sued in its own name

Reasoning

The respondents wrongly invoked the Societies Act. Co-operative societies are governed by CAP 490, whose Section 12 confers body corporate status with perpetual succession and power to sue and be sued. The court applied the reasoning in Joseph Muthuri Ikunyua that a co-operative society is a separate legal entity from its members, akin to the Salomon principle.

p. 6
05

Whether the applicants established a case for inhibition and temporary injunction

Holding

The uncontroverted evidence showed the respondents had subdivided and sold the land; the applicants established sufficient interest, risk of alienation, irreparable harm and balance of convenience

Reasoning

The respondents filed no replying affidavit, leaving the applicants' sworn averments uncontroverted. The green card confirmed Wilson Wenani as original owner and the chief's letter confirmed beneficiaries. The applicants reside on the ancestral land and face disinheritance. Applying the Giella v Cassman Brown principles and the lower-risk-of-injustice approach, both inhibition and injunction were warranted.

p. 8

Legal principles established

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  • A preliminary objection raising matters requiring ascertainment of facts or probing of evidence is not a pure point of law
  • A registered co-operative society is a body corporate with capacity to sue and be sued under Section 12 of the Co-operative Societies Act
  • An order of inhibition under section 68 of the Land Registration Act preserves disputed property pending trial where the applicant demonstrates risk of alienation

Court orders

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  1. 1.An order of inhibition inhibiting registration of any dealing in respect of land parcel No. Malakisi North & Central Namwela/1301, 1302, 1303, 1428 and 1429 by way of transfer, charge, lease, subdivision or any other dealing pending hearing and determination of the suit
  2. 2.An order of temporary injunction restraining the 5th respondent from entering, occupying, tilling, constructing, fencing, carrying on developments or in any way utilising land parcel No. Malakisi North & Central Namwela/1302 and 1429 pending hearing and determination of the main suit
  3. 3.Costs of the application awarded to the Applicants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 6, 7, 27
  • Civil Procedure Rules, 2010Order 40 Rules 1 & 4
  • Co-operative Societies ActSection 12 (CAP 490)
  • The Societies ActCAP 108
  • Land Registration ActSection 68(1)

Cases cited (24)

  • Mukisa Biscuits Manufacturing Ltd. v West End Distributors Ltd
    Civil Appeal No. 9 of 1969 (1969) EA 696
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another
    [2016] eKLR
  • Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission
    Nairobi HCCP No. 1 of 2010
  • Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others
    [2002] eKLR
  • Kenya National Commission on Human Rights Vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others
    (2002) eKLR
  • Nicholas Njeru Vs the Attorney General and 8 Others
    Civil Appeal No. 110 of 2011 [2013] eKLR
  • Joseph Muthuri Ikunyua & 32 others v Co-operative Bank of Kenya Limited & 14 others
    [2018] eKLR
  • Salomon v A Salomon and Co Ltd
    [1897] AC 22
  • Rashid Kogi Muturi (Suing on his own behalf and on behalf of members of Thika Muslim Housing Co-Operative Society Limited vs. Screen Check Limited & Another
    (2019) eKLR
  • Mwangi (Suing for and on behalf of the Chairman, Athara Farmers Shareholders Complaint Committee) vs. Attorney General & 7 Others
    (2022) KEELC 13730 (KLR)
  • Melickzedek Shem Kamau vs. Beatrice Waithera Maina & 2 others
    (2020) eKLR
  • Daniel Kipkemoi Bett & Another vs. Joseph Rono
    (2022) eKLR
  • Kennedy Mokua Ongiri vs. John Nyasende Mosioma & Florence Nyamoita Nyasende
    (2022) eKLR
  • Hathinge Self Help Group vs. Co-operative Bank Housing & Another
    (2021) eKLR
  • Dorcas Muthoni & 2 others v Michael Ireri Ngari
    (2016) eKLR
  • Japhet Kaimenyi M'Ndatho v M'Ndatho M'Mbwiria
    (2012) eKLR
  • Films Rover International & others v Cannon Films Sales Ltd
    (1986) 3 All ER 772
  • Giella v Cassman Brown
    (1973) EA 358
  • Nguruman vs Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012 (2014) eKLR
  • Mrao Ltd Versus First American Bank of Kenya Ltd
    (2003) EKLR
  • Pius Kipchirchir Kogo Vs Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau Vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
  • Amir Suleiman Vs Amboseli Resort Limited
    [2004] eKLR
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 40 Rules 1 & 4 of the Civil Procedure Rules, 2010; Section 68 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Natembeya (As legal representatives of the Estate of Peter Natembeya Wenani) & another v Wenani & 4 others (Environment & Land Case E002 of 2023) [2024] KEELC 4822 (KLR)", Case Analysis (2024). Bungoma ELC Case No. E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4822/eng@2024-06-20

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