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ELCPartially AllowedELC Case (Busia) - Notice of Motion dated 31st October 2024, 13th November 2024 and 18th November 2024· [2025] KEELC 2958 (KLR)

Ng'ang'a (Suing as administrator for and on behalf of the Estate of the Late Benson Ng’ang’a Ndirangu - Deceased) v Ng’ang’a (aka Frank Ndirangu) & another; Bennandira Limited (Interested Party) (Environment and Planning Civil Case E001 of 2024) [2025] KEELC 2958 (KLR)

Environment and Land Court
28 March 2025
6,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped a step-son from selling or collecting rent on family properties, finding evidence the land transfers used forged signatures.

What this practically means

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Executive summary

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In this ruling of the Environment and Land Court at Busia, Justice Boaz N. Olao determined three consolidated Notices of Motion arising from a dispute between Margaret Wangoi Ng'ang'a, Administratrix of the estate of the late Benson Ng'ang'a Ndirangu, and her step-son James Ndirangu Ng'ang'a over three Busia Municipality plots (532, 533 and 535) developed with rental properties known as Benna Plaza and Equity Building. The Plaintiff sought a temporary injunction restraining the 1st Defendant from dealing with the suit properties or collecting rent, alleging he fraudulently incorporated Bennandira Ltd using forged signatures and transferred the properties to it. The 1st Defendant and the Company sought to vacate the ex-parte injunction and to have the Company enjoined. The Court first confirmed its jurisdiction under Section 13(2) of the Environment and Land Court Act, distinguishing Co-operative Bank v Kangethe Njuguna since the claim involved accounts of rental income, not accounts under a charge. Applying Giella v Cassman Brown, the Court found a prima facie case based on a forensic report indicating forged signatures and family meeting minutes vesting control of rent in the Plaintiff, plus irreparable loss and balance of convenience in her favour. The Plaintiff's Motion was allowed in terms of the injunction prayer; the police supervision prayer was declined. The 1st Defendant's Motion was dismissed as misconceived, an ex-parte injunction being challengeable only by replying affidavit, preliminary objection or grounds of opposition. The Interested Party was enjoined but its prayers for stay and vacation of orders were declined, its entitlement to the properties being a matter for trial. Directions were issued for pleadings and pre-trial, with no orders as to costs given the family relationship of the protagonists.

Key legal issues

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01

Jurisdiction of the ELC over the dispute

Holding

The Court has jurisdiction; the claim is for injunction over land, cancellation of fraudulent transfer and accounts of rental income, all within Section 13(2) ELC Act, and distinguishable from Co-operative Bank v Kangethe Njuguna which concerned accounts under a charge.

Reasoning

The 1st Defendant vaguely suggested lack of jurisdiction without specifying grounds. The Court examined the plaint's prayers and found the dispute concerns land and rental income accounts, not accounts arising under a charge as in the Co-operative Bank case. The objection was not raised with conviction, the deponent even wishing the issues be determined by this Court, amounting to approbating and reprobating.

p. 9
02

Whether the Plaintiff established a prima facie case for temporary injunction

Holding

Yes. The family meeting minutes show the Plaintiff was to direct rent payments and be involved in decisions on the suit properties, and a forensic report suggests forgery of signatures used to transfer the properties.

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the Court found the Plaintiff had a bona fide question as to the existence of the right she alleges. The forensic document examiner's report suggested the deceased's signature was forged, and no explanation was given for the alleged conspiracy against the 1st Defendant. Irreparable loss was shown as properties could be put beyond the estate's reach, and the balance of convenience favoured granting the injunction.

p. 11
03

Whether the Interested Party should be enjoined

Holding

Yes, on prayer (2) only. The validity of the certificates of lease in its name and whether the company is a fraud cannot be determined without its involvement.

Reasoning

Applying the Supreme Court's definition in Trusted Society of Human Rights Alliance v Mumo Matemo, the Company has a recognisable stake as registered proprietor since 20th April 2022 of the properties whose transfer the Plaintiff claims was fraudulently procured. Its joinder is necessary for effective adjudication, but its prayers for stay and vacation of orders were declined as a matter for trial.

p. 13

Legal principles established

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  • An issue of jurisdiction must be determined at the earliest opportunity, even by the court on its own motion, and a court without jurisdiction must down its tools.
  • The ELC has jurisdiction under Section 13(2) of the Environment and Land Court Act over claims for permanent injunction relating to land, nullification of fraudulent transfers of land and taking accounts of rental income, though not over taking of accounts under a charge.
  • An ex-parte temporary injunction cannot be challenged by filing a fresh application; it must be challenged through a replying affidavit, notice of Preliminary Objection or grounds of opposition.
  • An Interested Party is one who has a stake in the proceedings though not a party to the cause ab initio and will be affected by the decision either way.

Court orders

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  1. 1.Temporary injunction issued restraining the 1st Defendant, his agents, employees, representatives or whosoever else acting in cahoots with or under his instructions from selling, leasing out, charging, transferring, creating tenancies, renewing tenancies and sub-leases, trespassing, managing or collecting rent from tenants of parcels Busia/Municipality/532, 533 and 535 or interfering with the Plaintiff's duties in administering the Estate pending the hearing and determination of the suit
  2. 2.The 1st Defendant's Notice of Motion dated 13th November 2024 is dismissed
  3. 3.The Interested Party's Notice of Motion dated 18th November 2024 is allowed only to the extent that the Interested Party is enjoined in these proceedings; the other prayers are declined
  4. 4.The Interested Party to file and serve its pleadings within 30 days of the ruling, with parties having 15 days from service to respond
  5. 5.The Plaintiff to serve the 1st Defendant with the plaint within 7 days and file an affidavit of service
  6. 6.The 1st Defendant to file and serve his defence and documents within 15 days from the date of service
  7. 7.Parties to appear before the Deputy Registrar on 19th May 2025 for pre-trial and taking of a hearing date subject to compliance with Order 11 Civil Procedure Rules
  8. 8.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 14(1)
  • Civil Procedure RulesOrder 11
  • Environment and Land Court ActSection 13(2)
  • National Police Service ActSection 24
  • Land Registration ActForm LRA 33; Form LRA 34

Cases cited (9)

  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil Kenya Ltd
    1989 KLR 1 [1989 eKLR]
  • Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna & Others
    C.A. Civil Appeal No 80 of 2016 [2017 eKLR]
  • Joel Kyatha Mbaluka T/a Mbaluka & Associates Advocates v Daniel Ochieng Ogola T/a Ogola Okello & Company Advocates
    C.A. Civil Appeal No 250 of 2017 [2019 eKLR]
  • Giella v Cassman Brown & Company Ltd
    1973 E.A. 358
  • Mrao Ltd v First American Bank of Kenya
    2003 KLR 125
  • Nguruman Ltd v Jan Bonde Nielsen & Others
    C.A. Civil Appeal No 77 of 2012
  • Films Rover International v Cannon Film Sales Ltd
    1986 3 All ER 772
  • Kamau Mucuha v Ripples Ltd
    C.A. Civil Appeal No 186 of 1992
  • Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others
    Petition No 12 of 2013 [2015 eKLR]
Jurisdiction invoked
Section 13(2) of the Environment and Land Court Act

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, "Ng'ang'a (Suing as administrator for and on behalf of the Estate of the Late Benson Ng’ang’a Ndirangu - Deceased) v Ng’ang’a (aka Frank Ndirangu) & another; Bennandira Limited (Interested Party) (Environment and Planning Civil Case E001 of 2024) [2025] KEELC 2958 (KLR)", Case Analysis (2025). ELC Case (Busia) - Notice of Motion dated 31st October 2024, 13th November 2024 and 18th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2958/eng@2025-03-28

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