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ELCPartially AllowedNot stated in the judgment (application dated 19th February, 2024)· [2024] KEELC 7219 (KLR)

Macharia (Suing as the Legal Representative of the Estate of Macharia Kagio (Deceased)) v Kuria (Environment & Land Case E003 of 2024) [2024] KEELC 7219 (KLR)

Environment and Land Court
31 October 2024
LOL. A. Omollo
7,026 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 blocked sale of disputed deceased-owned land but allowed the current farmer to keep using it until the case is decided.

What this practically means

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Executive summary

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The Plaintiff/Applicant, a son and beneficiary of the estate of the late Macharia Kagio holding letters of administration ad litem, sought a temporary injunction restraining the Defendant/Respondent from farming, erecting structures, transferring, disposing of or dealing with Kericho/Chilchila/Kunyak Block 2 (Urafiki) parcels 30 and 31 pending trial. He contended the parcels were fraudulently transferred to the Respondent after his father's death on 23rd May 2022, amounting to intermeddling with the estate. The Respondent countered that he purchased the parcels in 2013 for Kshs 4,760,000/-, paid the full purchase price by February 2014 via banker's cheques, took occupation in December 2013, and that transfers of parcels 30 and 31 were effected through due process; he noted the deceased's will and pending succession causes excluded the properties. Applying Giella v Cassman Brown, the court found a prima facie case since the undisputed registration of the Respondent as owner on 22nd June 2022, after the deceased's death and without explanation for a nine-year delay, discloses an apparently infringed right to protection of a deceased's property. However, the Applicant failed to demonstrate irreparable injury not compensable by damages, and the balance of convenience favoured the Respondent's continued occupation given the sugarcane crop on the land. The application partially succeeded: injunctions issued restraining transfer/disposal and erection of permanent structures only, with costs of the application to abide the outcome of the suit.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

Yes - the estate's right to have a deceased's property protected was apparently infringed by the posthumous registration of the Respondent

Reasoning

It is not disputed that the deceased was registered owner, died on 23rd May 2022, and the Respondent was registered on 22nd June 2022 after his death. No explanation was offered for the nine-year delay in registration and why it occurred only after the demise. On the Mrao test, there is an apparent right being infringed calling for explanation, which can only happen at a hearing.

p. 12
02

Whether irreparable injury not compensable in damages was demonstrated

Holding

No - the Applicant did not demonstrate irreparable loss; mesne profits would be adequate compensation

Reasoning

The apprehension was a probable transfer/sale by the Respondent. The Respondent has been in occupation since 2013 growing sugarcane. The Applicant's plaint includes a prayer for mesne profits, which should adequately compensate for use should the suit succeed.

p. 13
03

Where the balance of convenience lies

Holding

It tilts in favour of the Defendant/Respondent in respect of use and occupation

Reasoning

The Respondent is in occupation with sugarcane growing; an injunction prohibiting his use would risk the sugarcane wasting away. Whether his occupation is as owner or lessee is a matter for trial.

p. 14

Legal principles established

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  • Conditions for grant of interlocutory injunctions
  • Definition of a prima facie case
  • Costs follow the event

Court orders

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  1. 1.An order of temporary injunction restraining the Respondent from transferring and/or disposing the suit parcels Kericho/Chilchila/Kunyak/Block 2 (Urafiki)/30 and 31 pending hearing and determination of the suit
  2. 2.An order of temporary injunction restraining the Respondent from erecting permanent structures on the suit parcels Kericho/Chilchila/Kunyak/Block 2 (Urafiki)/30 and 31 pending hearing and determination of the suit
  3. 3.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27 (Cap 21)
  • Civil Procedure RulesOrder 40 Rule 1 & 10
  • Law of Succession Actnull
  • Land ActSection 26

Cases cited (9)

  • Giella vs Cassman Brown and another
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    Civil Appeal No. 39 of 2002; [2003] eKLR
  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & another
    [2019] 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
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Peter Kariuki Njue vs Severina Njira Kithumbu & another
    [2020] eKLR
  • South Imenti Bar Owners S.H.G through its Chairman James Gikunda Ntaragwi vs County Government of Meru
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1 & 10 of the Civil Procedure Rules

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, "Macharia (Suing as the Legal Representative of the Estate of Macharia Kagio (Deceased)) v Kuria (Environment & Land Case E003 of 2024) [2024] KEELC 7219 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 19th February, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7219/eng@2024-10-31

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