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MagistratePartially AllowedNot stated in the judgment· [2026] KEMC 746 (KLR)

Tuitoek (Suing as the legal and personal representative of Titus Sikangule Mukhwana - Deceased) v Kisuya & another (Civil Suit E105 of 2026) [2026] KEMC 746 (KLR)

Magistrates' Court (Bungoma)
30 July 2026
TOT.O. Omono
3,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court ordered a widow and her in-laws to jointly run the deceased man's school and accounts rather than shutting either side out.

What this practically means

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Executive summary

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The Plaintiff, widow and administrator of the estate of Titus Sikangulule Mukhwana (deceased), moved the court by Notice of Motion dated 10th March 2026 under sections 3, 3A and 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking to restrain the Defendants from managing, using or interfering with Crown City School Chwele and to freeze two bank accounts at National Bank, Bungoma Branch. She asserted that the deceased was the school's sole registered owner and that the Defendants had unlawfully taken over its management, diverted fees into their joint account, denied her access, and were intermeddling with the estate. The Defendants countered that the school was a family legacy property built on land donated by their parents, that their father had taken over management and secured a donor to save the school, and that a constructive trust existed in the family's favour. Applying the sequential Giella/Nguruman principles and the prima facie test in Mrao Ltd, the court found a prima facie case on the strength of the registration certificates and a 2013 gift agreement; found irreparable injury on the basis that the school and its funds risked destruction or dissipation; and held the balance of convenience favoured the Applicant. However, the court declined to grant the restraining order as couched, reasoning it would determine ownership at interlocutory stage, and declined the account freeze as it would infringe learners' right to education. Instead, on 30th July 2026 the court ordered joint management of the school and both accounts, statements of accounts within 14 days, Order 11 compliance within 30 days, and costs to abide the suit. Tags: land-law, succession, interlocutory-relief, injunction, trusts-equity, remedies, education-law.

Key legal issues

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01

Prima facie case

Holding

Established - the Certificate of Registration showed the deceased was the school's sole registered owner, so the Applicant's right to inherit and manage it was apparently infringed

Reasoning

Applying Mrao Ltd, the court asked whether a right had apparently been infringed calling for rebuttal. The registration certificates showed the deceased as sole registered owner, and a 2013 gift agreement credited the Plaintiff's case that the school was not a family legacy project. Any constructive trust claim is a matter for the Defendants to prove at trial.

p. 7
02

Irreparable injury

Holding

Established - the school and its funds risk destruction or dissipation if no preservation orders issue

Reasoning

Relying on Halsbury's definition and Warsame J in Mosioma, the court held that damages are not an automatic remedy. Unrestrained dealing by the Defendants could render the suit moot and make recovery of school income difficult, so failure to preserve the school and its funds would cause irreparable damage.

p. 9
03

Balance of convenience

Holding

Tilted in the Applicant's favour, following Paul Gitonga Wanjau, given the strong prima facie case and risk of irreparable harm

Reasoning

Having satisfied the first two sequential hurdles, the balance of convenience inevitably favoured the Applicant; the court cited the principle that a strong case on the merits or significant irreparable harm influences the balance and justifies maintaining the status quo.

p. 9

Legal principles established

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  • The three Giella/Nguruman requirements for an interlocutory injunction are separate, distinct and sequential hurdles; failure on the first renders the others moot
  • Even where injury is compensable in damages, an injunction may issue if the subject matter risks destruction
  • Damages are not an automatic substitute for injunctive protection of a crystallized right

Court orders

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  1. 1.The Plaintiff/Applicant and the Defendants/Respondents are granted joint management of Crown City School Chwele pending the hearing and determination of this suit
  2. 2.The Plaintiff/Applicant and the Defendants/Respondents are granted joint management of account number 7715995274 (Crown City School Chwele) and account number 7712811918 (Tryphosa Walela Mukhwana Kisuya and Amos Natembeya Kisuya), all held at National Bank Bungoma Branch, pending the hearing and determination of this suit
  3. 3.The Defendants/Respondents to file and serve statements of accounts for both accounts showing all deposits and withdrawals from the date of the deceased's death to date within fourteen (14) days
  4. 4.Parties to comply with Order 11 of the Civil Procedure Rules within thirty (30) days
  5. 5.Costs of the application to abide the outcome of the suit
Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 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, "Tuitoek (Suing as the legal and personal representative of Titus Sikangule Mukhwana - Deceased) v Kisuya & another (Civil Suit E105 of 2026) [2026] KEMC 746 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/746/eng@2026-07-30

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