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ELCPartially Allowed· [2019] KEELC 158 (KLR)

Nancy Mueni Kavisa (suing on behalf of the Estate of James Murira Kioi) v Sammy Mathenge Mwathi & 3 others [2019] KEELC 158 (KLR)

Environment and Land Court
19 December 2019
2,264 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court blocked a bank from auctioning a widow's home because the man who transferred and charged it had no valid claim to the deceased's land.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi (S. Okong'o, J) concerned Nairobi/Block 102/41, registered in the name of James Murira Kioi, who died on 5th October, 2017. The plaintiff, his widow and legal representative, sued the 1st defendant (registered as proprietor on 21st December, 2017, after the deceased's death), the 2nd defendant (chargee under a charge dated 27th February, 2018 securing Kshs.5,000,000), and others, alleging fraudulent transfer and charge, and seeking an injunction, cancellation of the registrations, reversion of the title and costs. Her Notice of Motion dated 18th September, 2018 sought a temporary injunction pending trial; interim orders had been issued on 2nd October, 2018. The 2nd defendant responded with its own application dated 10th January, 2019 seeking discharge of the injunction and liberty to auction, relying on Order 40 Rule 4(3) (non-service of the order) and lapse after 14 days, and asserting it conducted due diligence. The applications were heard together on 29th April, 2019. The court held that the plaintiff had established a prima facie case with a probability of success: no evidence showed how the 1st defendant acquired a deceased person's property before any grant of letters of administration, so the fraud claim was not farfetched; and a fraudulent title would leave the charge with no foundation. Irreparable harm was also established, as the plaintiff occupied the property with her family and the inconvenience of eviction could not be quantified in damages. The court applied the Giella v Cassman Brown test, allowed the plaintiff's application in terms of prayer 3, confirmed the injunction, ordered costs in the cause, and declined to consider the 2nd defendant's application as overtaken by events. The suit itself proceeds to trial.

Key legal issues

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01

Whether a prima facie case with a probability of success was established

Holding

Yes, against the 1st and 2nd defendants; the uncontroverted evidence showed the deceased was registered proprietor at death and the 1st defendant was registered two months later with no evidence of lawful acquisition before a grant issued

Reasoning

The court found it common ground that the deceased was the registered owner as at his death on 5th October, 2017 and that the 1st defendant was registered on 21st December, 2017. The 1st defendant produced no evidence explaining the transfer, and no grant had issued at the time. In the absence of proof of lawful acquisition, the plaintiff's allegation of fraud was not farfetched, satisfying the Giella v Cassman Brown first condition.

02

Whether irreparable harm not compensable in damages would be suffered

Holding

Yes; the plaintiff and her family reside on the property and the harm of eviction could not be quantified in damages

Reasoning

The 2nd defendant did not dispute the plaintiff's occupation or its intention to auction. If sold, the plaintiff and her family would have to vacate or face eviction. The court held this inconvenience could not be quantified in compensation should she succeed at trial, satisfying the second Giella condition and rendering consideration of the balance of convenience unnecessary.

p. 3
03

The fate of the 2nd defendant's application to discharge the injunction

Holding

It was subsumed in and overtaken by the plaintiff's application and did not require determination

Reasoning

The court had heard the plaintiff's application inter partes and was rendering its decision on it, so nothing turned on the interim order granted pending that hearing; that order would be confirmed or discharged based on the court's findings. The 2nd defendant's application thus fell away.

p. 2

Legal principles established

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  • A transfer of a deceased person's registered property effected after death and before a grant of letters of administration raises a prima facie case of fraud in the absence of evidence of lawful acquisition
  • A charge created over a fraudulently acquired title cannot stand
  • A chargee who accepts a title as security without conducting due diligence takes the risk of an impugned root of title

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 18th September, 2018 is allowed in terms of prayer 3 thereof (a temporary injunction restraining the defendants from advertising for sale, disposing of, alienating, dealing with, selling by public auction or private treaty, transferring, leasing or otherwise interfering with the ownership of the suit property pending the hearing and final determination of the suit)
  2. 2.The costs of the application are in the cause
  3. 3.The 2nd defendant's application dated 10th January, 2019 was not considered, having been overtaken by events
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land ( Articles 162(2)(b) and 165(5)(b) of the Constitution, Environment and Land Court Act) - not expressly cited in the ruling

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, "Nancy Mueni Kavisa (suing on behalf of the Estate of James Murira Kioi) v Sammy Mathenge Mwathi & 3 others [2019] KEELC 158 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/158/eng@2019-12-19

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