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ELCAllowedNot stated in judgment (notice of motion dated 1.11.2021)· [2021] KEELC 139 (KLR)

Silas Kirimi Samwel v John Muriira Riungu & 3 others [2021] KEELC 139 (KLR)

Environment and Land Court
20 December 2021
CNC.K. NZILI
397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru froze a land transfer made just weeks after the owner died, protecting the estate pending a full hearing.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Meru by notice of motion dated 1 November 2021 seeking inhibition orders and a temporary injunction over L.R Ntima/Nkariua/700 pending the hearing and determination of the suit. The land had been registered in the name of Silas Kirimi Ngatuni pursuant to a decree and judgment of the court made on 11 August 2018, but he died on 15 July 2021, and the property was allegedly transferred to the defendants on 26 August 2021, soon after his death. Applying the classic Giella v Cassman Brown conditions for a temporary injunction, the court found that the deceased had acquired the land through a regular decree and was registered as owner, and that the circumstances in which the title was changed so soon after his death required interrogation at the hearing. The respondents were served but did not oppose the application. The court held that the applicant had established a right to ownership protected under Article 40 of the Constitution read with Order 40 of the Civil Procedure Rules, as reinforced by Mrao Ltd v First American Bank of Kenya Ltd, and that Section 68 of the Land Registration Act empowered the court to order preservation of suit land in deserving cases. The application was allowed in terms of prayers 3 and 4 (inhibition and temporary injunction) for a period of one year. Judgment delivered on 20 December 2021 by C.K. Nzili, ELC Judge.

Key legal issues

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01

Entitlement to temporary injunction and inhibition orders over land transferred soon after the registered owner's death

Holding

Application allowed in terms of prayers 3 and 4 for one year

Reasoning

The deceased had acquired the suit land through a regular decree and judgment of the court, and was registered as owner. The transfer to the defendants occurred soon after his death and the circumstances of the change on the title required interrogation at the hearing. The applicant's right to ownership under Article 40 of the Constitution read with Order 40 of the Civil Procedure Rules required protection, and Section 68 of the Land Registration Act empowered the court to order preservation. The respondents, though served, did not oppose.

p. 1

Legal principles established

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  • The conditions for a temporary injunction are a prima facie case with probability of success, irreparable loss not compensable by damages, and balance of convenience
  • The court's power to order preservation of suit land under Section 68 of the Land Registration Act extends to deserving cases where issues require determination at hearing

Court orders

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  1. 1.Application allowed in terms of prayers 3 and 4 (inhibition orders over L.R Ntima/Nkariua/700 and temporary injunction) for a period of one year
Jurisdiction invoked
Order 40 of the Civil Procedure Rules and Section 68 of the Land Registration Act

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, "Silas Kirimi Samwel v John Muriira Riungu & 3 others [2021] KEELC 139 (KLR)", Case Analysis (2021). Not stated in judgment (notice of motion dated 1.11.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/139/eng@2021-12-20

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