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High CourtDismissedNotice of Motion dated 19th September 2009, filed 24/09/2012 (suit over LR No. Githunguri/Kimathi/1246)· [2013] KEHC 6585 (KLR)

Grace Njoki Kago & another v Dickson Ndicho Kago

High Court of Kenya
29 August 2013
LGL.N. Gacheru
1,284 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If land is legally gifted and registered in someone else's name, estate heirs cannot automatically stop them from selling it.

What this practically means

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Executive summary

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Grace Njoki Kago (widow) and Eunice Wangui Kago (daughter) of the late Kago Gitau, administrators of his estate, sought an interlocutory injunction under Order 40 Rules 1, 2 and 3 and Sections 3A and 63(3) of the Civil Procedure Act restraining the 1st defendant, Dickson Ndicho Kago, from selling, disposing of, alienating or interfering with their possession of LR No. Githunguri/Kimathi/1246 pending trial. They alleged the deceased transferred the land to the 1st defendant in 1997 only to enable him to secure a bank loan, with an understanding that it would be re-transferred, and that he therefore held it in trust for the beneficiaries. The 1st defendant acknowledged registered ownership but maintained the land was gifted to him in 1997, formed no part of the estate, and that no fiduciary relationship existed. Applying the Giella v Cassman Brown principles, L.N. Gacheru J found the green card showed an outright gift with no trust notation, that the deceased could have acted as guarantor had a loan been the purpose, and that the confirmed grant distributed the estate without including the suit land, showing it was not the deceased's property at death. The applicants, each having inherited land from the estate, failed to show irreparable harm, and the balance of convenience did not favour them. The application was dismissed with costs in the cause, and the plaintiffs were directed to set the main suit down for hearing expeditiously.

Key legal issues

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01

Whether the applicants established a prima facie case with high probability of success

Holding

They did not; the land was validly gifted to the 1st defendant in 1997, was registered in his name without any trust indication, and was not part of the deceased's estate at death

Reasoning

The green card showed transfer as a gift with no trust notation. The estate had been distributed per the confirmed grant without the suit land, showing it was not the deceased's property at death. The applicants' loan-security explanation was speculative, as the deceased could have been a guarantor instead.

p. 3
02

Whether the applicants would suffer irreparable harm not compensable by damages

Holding

They would not; each applicant inherited a share of land from the estate and cannot claim to have nowhere to live

Reasoning

The certificate of confirmation of grant showed each applicant inherited a share of land from the estate, so any loss would be compensable. The court was not in doubt and the balance of convenience did not favour the applicants.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person under Section 24(a) of the Land Registration Act
  • An applicant for an interlocutory injunction must show a prima facie case with probability of success, irreparable loss not compensable by damages, and failing which the balance of convenience is considered

Court orders

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  1. 1.The applicants' Notice of Motion dated 19th September 2009 and filed on 24/9/2012 is dismissed
  2. 2.Costs in the cause
  3. 3.The plaintiffs to set the matter down for hearing so that the main suit can be decided expediently

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(3)
  • Civil Procedure RulesOrder 40 Rules 1, 2 & 3
  • Land Registration ActSection 24(a)

Cases cited (1)

  • Giella vs Cassman Brown
    1973 EA 358

    Threshold principles for grant of interlocutory injunctions

Jurisdiction invoked
Order 40 Rules 1, 2 & 3 and Sections 3A and 63(3) of the Civil Procedure Act, Cap 21 Laws of Kenya

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, "Grace Njoki Kago & another v Dickson Ndicho Kago", Case Analysis (2013). Notice of Motion dated 19th September 2009, filed 24/09/2012 (suit over LR No. Githunguri/Kimathi/1246). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6585/eng@2013-08-29

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