Consolata Pande & another v Ashish Bhupendera Patel & 4 others [2017] KEELC 2654 (KLR)

agreed to file written submissions. The counsel for the Plaintiffs filed the written submissions dated 10 th March 2017 while counsel for the 1st and 2nd Defendants filed theirs dated 28th January 2017. 5. The following are the issues for the determination by the court; a) Whether the Plaintiffs have established a prima facie case with a probability of success for temporary injunction order to issue at the interlocutory stage. b) Who pays the costs. 6. The court has after carefully considering the grounds on the notice of motion, affidavit evidence filed, written submissions by both counsel concluded as follows; a) That the Plaintiffs obtained a Grant Ad litem in respect of the estate of Aboma Otengo in Kisumu Succession Cause No.918 of 2015 on the 28 th September 2015. The Grant was limited for a period of 90 days. This suit was commenced through the plaint dated 25 th November 2015 and filed on 30th November 2015 vide receipt Number 7163471, and therefore within the lifetime of the limited Grant. The Plaintiffs therefore have authority under the said Grant Ad litem to commence this suit for the estate of the said Aboma Otengo, deceased. b) That the subject matter of this suit is land parcel Kisumu/Ojola/2103 which was initially registered in the name of Aboma Atengo, the deceased, on the 21st July 1978. That the said deceased died on the 12th September 1978, and even though the Plaintiffs position is that no confirmed grant of his estate had been obtained before the land was transmitted to the name of their step uncle, namely Shadrack Okello Chan who is the 3rd Defendant, the 4th Defendant’s replying affidavit annexed a copy of certificate of confirmation issued in Kisumu H.C. succession Cause No.38 of 2002 in respect of the estate of Aboma Atengo indicating that the grant had been issued to the 3rd Defendant and that he was to inherit land parcel Kisumu/Ojola/2103 which is the suit land. c) That though the Plaintiffs alleges that the 3rd Defendant had disclosed that he had not obtained a confirmed grant when he transferred the suit land to himself, the confirmed grant refered to in (b) above tells a different story and as he has not filed any replying papers to confirm the Plaintiffs contention, the court can only take the Plaintiffs’ claim on that issue to be heresy at this stage. d) That the Plaintiffs have annexed to their supporting affidavit a copy of a limited grant ad colligenda bon in Kisumu H.C. Succession Cause No.38 of 2002 in respect of the estate of Barrack Odhiambo Gumbe who died on 11 th August 200l. The grant was issued on 23 rd of undisclosed month in year 2002 to Angeline Atieno Ngonga. That though the cause number in that cause and the one refered to in (c) above are the same, they relate to different estates, and are issued to different persons. e) That the replying affidavit sworn by the 2 nd and 4th Defendants have clearly indicated that the person who effected the transfer to the 1st and 2nd Defendants was Silvanus Onyiego Nyawaga and not the 3rd Defendant. That the copies of the green card for parcel Kisumu/Ojola/2103 confirmed that the 3rd Defendant became the registered proprietor on the 13th November 2002 while Silvanus Onyiego Nyamwaga became the registered proprietor on the 4 th December 2002 and that he transferred the land to the 1st and 2nd defendants on the 28th February 2014. f) That the Plaintiffs have not taken any steps to enjoin the said Silvanus Onyiego Nyawaga in this proceedings. The contents of the green card record would mean there was no contract between the 3rd Defendant and the 1st and 2nd Defendants over the suit land. The court is therefore of the considered finding that the Plaintiffs have failed to establish a prima facie case with a probability of success for temporary injunction order to issue against the 1 st and 2nd Defendants. The Plaintiffs

page 2 of 3

have not established what irreparable damage they stand to suffer should the order sought not be granted and the balance of convenience tilts against issuing the order. 7. That flowing from the foregoing, the court finds the notice of motion dated 25 th November 2015 to be without merit and is dismissed with costs. It is so ordered. S.M. KIBUNJA ENVIRONMENT & LAND – JUDGE DATED AND DELIVERED THIS 14TH DAY OF JUNE 2017 In presence of; Plaintiffs Absent Defendants Absent Counsel Mr. Yogo for the 1st and 2nd Defendant S.M. KIBUNJA ENVIRONMENT & LAND – JUDGE 14/6/2017 14/6/2016 S.M. Kibunja Judge Oyugi court assistant Parties absent Mr Yogo for the 1st and 2nd Defendant Court: The ruling dated and delivered in open court in presence of Mr. Yogo for the 1st and 2nd Defendants only. S.M. KIBUNJA ENVIRONMENT & LAND - JUDGE 14/6/2017

page 3 of 3