Irene Wanjiku Murari & 1 other v Rosemary Wanjiru Ndegwa & 7 others

c. That the estate of John Kamau Murari be indemnified form any claim or los arising out of dealings or transactions in relation to land parcel no L.R. 4953/2951 Thika by the Defendants. d. Any other relief or better relief the honourable court may deem fit and just to grant. e. Costs be provided. 2. The Application is based on the grounds as set out on its face and the Supporting Affidavit of Irene Wanjiku Murari on her own behalf and on behalf of the 2nd Plaintiff herein. The Applicant holds that she is the administrator of the estate together with the 2nd Plaintiff. That they had instructed the firm of Nganga Munene & Co. Advocate to file Succession proceedings of the estate but the same was never done and when he requested for the release of documents to her she realised acknowledgment of receipts of the subject parcel of land. She holds that the entire transaction are strange to the estate since they relate to an administered estate and since it was done without consent of the beneficiaries of the estate hence it amounts to intermeddling. The Applicant thus seek the court to issue injunction over the subject property and indemnify the estate from any claims or loss arising out of the transactions. 3. The Application was opposed through Grounds of opposition dated 20th December, 2023 on the following grounds:a. That the application is bad in law, frivolous, vexatious and abuse of court process. b. That this Honourable court has no jurisdiction to hear and determine the present application and/or suit. 4. The Respondents further filed Replying Affidavit sworn by Rosemary Wanjiru Ndegwa sworn on 19th April, 2024 on her own behalf and on behalf of the 2nd and 3rd Respondents. She holds that the subject property was co-owned by the deceased John Kamau Murari, Rosemary Wanjiru Ndegwa and Patrick Njagwi Mbugua, the 1st and 2nd Respondents herein. 5. The Respondents hold that the 1st and 2nd Respondents approached the 3rd- 5th Respondents for assistance of clearing of the land rent and rates of the subject property and facilitation of the same and an agreement dated 17th May, 2021 was entered which the 3rd and 5th Respondents were conjoined as legal proprietors. That it was further agreed that the land shall be sold to a desirous purchaser and the sale agreement dated 1st July, 2021 was executed and even the deceased was present and he executed the same. They hold that the deceased was thus alive at the time of sale of the suit property and thus the same was legal and it further exchanged hands lawfully to the 7th Defendant upon transfer by the sellers John Kamau Murari, Rosemary Wanjiru Ndegwa and Patrick Njagwi Mbugua. They hold that they have not received any consideration that was meant for the deceased since the 7th Defendant has not paid any other sum since 2023 despite several demands for the same. 6. The application was canvassed by way of written submissions. In the Plaintiffs’ Submissions dated 26th September, 2024 they reiterate that the transfer and dealing of the suit property could not be complete since it forms part of the Estate of the Deceased and it is stated that the balance of the purchase price remains unpaid. They therefore argue that transfer could not have been effected with the pending balances which raises suspicion of fraud and thus the application ought to be allowed. 7. The 1st and 2nd Respondent in their submissions dated 24th October, 2024 maintain that the application is full of material non-disclosures since the suit property is a common or joint ownership and that the suit property was sold to the 7th Defendant and thus the prayer of injunction was made too late in the day. They further argue that the application has not met the grounds set out in Giella –vs- Cassman https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19269/eng@2025-12-05 2

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Brown (1973) EA 358 of prima facie, irreparable injury and balance of convenience and thus the same should be dismissed with costs. Analysis and Determination 8. Having read the Notice of Motion application and its supporting Affidavit, the Replying Affidavit and the submissions and the court finds that the main issue for determination:a. 9. Whether the application for injunction has merits to warrant the orders sought. The Court of Appeal in Nairobi in Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others [2014] eKLR relied on the principles established in the Giella –vs- Cassman Brown & Co Ltd [1973] EA 358 and held as follows:“ In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.” Prima facie case b) The Court of appeal in Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 considered what constitutes a prima facie case and held that: “ In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter” 10. Looking at the facts of the case the issues that have been raised go into the root of the case of how the sale of the subject property was done, how the transfer of the property was effected. The Applicant’s argument is that the transfer could not have been done if the balance of the payment of the purchase price has not been paid and thus suspects fraudulent dealings. 11. The court has seen the Lease document which shows that the parcel of land which shows that it was co-owned by John Kamau Murari, Rosemary Wanjiru Ndegwa and Patrick Njagwi Mbugua. It is indicated that John Kamau Murari is deceased and thus the court needs to determine the nature of ownership of the parcel whether it was joint tenancy or tenancy in common. The court has also seen the sale agreement which was executed by the deceased together with other owners dated 17th May, 2021. There is no evidence on the part of the Applicants of fraud as alleged by the Applicants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19269/eng@2025-12-05 3

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12. Given the circumstances of the case, the court finds that it cannot grant any injunctive orders over the suit property for the reasons that the same was co-owned by John Kamau Murari, Rosemary Wanjiru Ndegwa and Patrick Njagwi Mbugua and the Deceased John Kamau Murari did not a sole interest over the same. Further the same was sold by all the owners even before the demise of John Kamau Murari and there is no evidence of any fraudulent dealings as claimed. The court thus finds that the Plaintiffs have not proved that they have a prima facie case against the Defendants to warrant the orders sought in the application. 13. Since there is no prima facie case there is no point of addressing the other conditions. This was the position in the case of Naftali Ruthi Kinyua –vs- Patrick Thuita Gachure & Another [2015] eKLR, where the Court of Appeal stated that:“ With reference to the establishment of a prima facie case, Lord Diplock in the case of American Cyanamid vs Ethicon Limited [1975] AC 396 stated thus, “ If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities that is the end of any claim to interlocutory relief.” 14. In the end, the Court finds that the Notice of Motion application dated 28th November, 2023 lacks merits and proceeds to dismissed the same with costs. It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF DECEMBER, 2025. D. O. CHEPKWONY JUDGE In the presence of: Mr. Ngari counsel for Plaintiff Court Assistant – Sakina/Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19269/eng@2025-12-05 4

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