1.The Plaintiff filed the Notice of Motion dated 15th March 2023 under Certificate of Urgency seeking the following orders:1.Spent.2.Spent.3.That this Honourable Court be pleased to issue a temporary injunction restraining the Defendants by themselves or through their servants, agents and/or assigns from trespassing into, selling, charging, disposing off, alienating, interfering, intermeddling or dealing in any other way with Land Parcel Number Kyangwithya/Misewani/626 or any sub-divisions thereof pending the hearing and determination of the suit herein.4.That an order do issue directing the Defendants to immediately deposit into court for safekeeping the original Title Deed in respect of Land Parcel Number Kyangwithya/Misewani/626 or any sub-divisions thereof pending the hearing and the determination of this suit.5.That this Honourable Court be pleased to order the OCS Kyangwithya Police Station or the nearest police station to supervise by himself or through his officers, to ensure compliance of this court’s orders.6.That this Honourable Court be pleased to give any other relief that this Honourable Court deems fit.7.That costs of this application be borne by the defendants.
2.The grounds in support of the application appear on the face of it and in the supporting affidavit. The Applicant claims that her husband Richard Mutunga Mailu (Deceased) was the rightful and beneficial owner of a 1 / 4 acre out of Land Parcel Number Kyangwithya/Misewani/626, (hereinafter referred to as the “suit land) having purchased it for a sum of Ksh.450,000 on 9th of November 2007 from Julia Matani Malombe (now deceased). The said Julia Malombe is said to have been a beneficiary of the estate of her husband Malombe Mwanga (Deceased) the registered owner of the suit land. The Applicant states that she took possession of the land and planted trees and she has been in continuous, uninterrupted occupation of the same until the Defendants encroached/trespassed into the land and cut down tress without the Applicant’s permission or consent.
3.Further, the Applicant states that efforts to have the suit property sub-divided and transferred to her husband or herself have not borne fruit since the seller Julia Matani Malombe died before this could be done while the Respondents who are the deceased’s daughter and granddaughter have refused to effect the transfer. She also claims that she has established that the Defendants are attempting to sell the suit property to third parties.
4.The Applicant states that she obtained letters of administration to the estate of the late Richard Mutunga Mailu in Succession Cause No. E155 OF 2020 on 17th February 2021 and the same were confirmed vesting the suit property to herself absolutely.
The Respondent’s Case
5.The Respondents filed Grounds of Opposition dated 5th April 2023 and a joint replying affidavit opposing the application on grounds that it is ill-advised, misconceived, frivolous and vexatious and as no legal basis. They claim that they are not legal representatives of the deceased estate and cannot be liable in this suit. They further state that the Defendants have no locus standi to pass the title to the land to the Applicant as it is not in their name.
6.The Respondents also stated that they are the daughter and granddaughter of the late Malombe Mwanga and late Julius Matani Malombe who owned the whole of Land Parcel Number Kyangwithya/Misewani/626. They acknowledged that indeed Julia Matani Malombe sold a quarter acre of the suit land to Richard Mutunga Mailu (Deceased) but he did not occupy it and it remained vacant as they also did not utilize it.
7.They stated that Julia Matani Malombe (Deceased) passed on before completion of succession of the Estate of Malombe Mwanga (Deceased) and the matter is still pending in court. The Respondents state that since they are not the legal representatives of the deceased’s estate and the suit property title is not in their name, they have no locus standi to pass title to the Applicant.
The Applicant’s Submissions
8.Counsel for the Applicant submitted that the Respondents have at paragraph 4 of the replying affidavit admitted that a quarter of the suit land rightly belongs to the Applicant and that they have not challenged the application herein but chose to dispute their joinder in the suit.
9.On whether the Respondents are rightly joined, the Applicant’s submission is that it is actually the Defendants in their individual capacities who have interfered with the Plaintiff’s right of use and enjoyment of the subject property and that the averments of the application remain unchallenged.
10.The Applicant submitted that she has established a prima facie case since the Respondents have admitted that the suit property belongs to her and has not advanced any evidence that the Plaintiff is not in actual possession of the suit property. Counsel submitted that any interference with the suit property will render the suit nugatory as they relied on the cases of Mrao Ltd vs First American Bank of Kenya Ltd (2003) eKLR.
11.Regarding the second requirement of whether the Applicant will suffer irreparable harm if the injunction order is not granted, counsel submitted that the illegal act of cutting down trees and the danger that the property may be illegally disposed of to an innocent purchaser for value without notice is real while the Defendants may not be able to compensate the Plaintiff adequately since they are not persons of defined means. She relied on the case of Pius Kipchircir Kogo vs Frank Kimeli Tenai(2018)eKLR on the meaning of irreparable harm.
12.Counsel submitted that the balance of convenience tilts in their favour since the Applicant has produced a sale agreement. She relied on the case of Albanus Harrison Mutemwah v Tekela Laibali Waiya & Another (2020) eKLR.
The Respondents’ Submissions
13.Counsel for the Respondents submitted that the Applicant was guilty of inter-meddling with the estate of a deceased person by buying the subject land when the seller, Julia Matani had not acquired letters of administration to the estate of her late husband, Mwanga Malombe (Deceased). Counsel relied on the case of Virginia Mwari Thuranira vs Purity Nkirote Thuranira (2017) eKLR and stated that the sale agreement is therefore null and void ab initio.
14.The Respondents denied interfering with the quiet and peaceful possession of the Plaintiff’s property and reiterated that they are not rightly joined in this application since they are not owners of the land and neither do they possess letters of administration.
15.Counsel further, submitted that the Applicant has not satisfied the conditions for grant of injunctive orders because they have not come to court with clean hands by virtue of an illegal sale agreement. They also stated that the Applicant cannot suffer irreparable harm since Respondents have never been in possession of the land and have not acquired letters of administration to the estate of the deceased and lack the requisite locus standi. They relied on the case of Trouistik Union International & Another v Jane Mbeyu & Another (2008) 1KLR(G7F)730.
Analysis and Determination
16.The law governing the granting of interlocutory injunction is set out under Order 40 (1) (a) and (b) of the Civil Procedure Rules, 2010 which provides that: -
17.The conditions for consideration in granting an injunction were settled in the celebrated case of Giella v Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the condition’s that a party must satisfy for the court to grant an interlocutory injunction as follows: -
18.This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that;
19.The first requirement is that the Plaintiff/Applicant must establish a prima facie case. The meaning of a prima facie case was explained in the case of In Mrao Ltd. –vs- First Americal Bank of Kenya Limited and 2 others (2003) eKLR, which the Plaintiff/Applicant relied on;
20.The Court of Appeal in the further stated that:
21.The Applicant attached to her supporting affidavit a certificate of official search on land parcel Kyangwithya/misewani/989 and none for the suit land Parcel Number Kyangwithya/Misewani/626 The search attached does not show who owns the land but shows that the title was closed upon subdivision on 27th October 2011 and new numbers 1888 and 1889 were issued.
22.The Respondents have denied committing any acts of trespass on the subject property, and further, have stated that they do not have the locus standi to have been enjoined in this suit since the title to the suit land is in the name of Mwanga Malombe (Deceased) and they are not the legal representatives of his estate.
23.In the case of Alfred Njau and Others ..Vs.. City Council of Nairobi ( 1982) KAR 229, the Court also held that;-
24.In determining whether the Applicant has established a prima facie case with a probability of success, the court has considered the claim as set out in the plaint. The Plaintiff seeks a number of prayers. She seeks to be declared the sole rightful legal owner of 1/4 acre of land parcel number Kyangwithya/Misewani/626 or in the alternative as owner through adverse possession.
25.The Applicant further prays for a permanent injunction against the Defendants restraining them from in any way interfering with the suit land and an order appointing a government surveyor to carry out survey work and sub-division the land and to exercise 1/4 acre in her favour. She further seeks for the Officer Commanding Station Kitui/Kyangwithya to supervise the survey work.
26.The Applicant prays for an order directing the Deputy Registrar to execute transfer documents to the claimed land in her favour and a further order directing the Registrar of lands to cancel the existing title to the suit land in her favour and that the Registrar of lands to dispense with production of original documents for the transfer and registration of the title over the 1/4-acre land forming part of the land parcel number Kyangwithya/Misewani/626.
27.The question raised by the Respondents is whether the Applicants have shown that prima facie, the Court can grant the above orders in their favour o as against the Respondents herein. In the Courts view it is doubtful that with the evidence on record the orders prayed in the suit are available to the Plaintiff as against the Defendants for the reason that the Plaintiff has not shown who the registered owner of the suit land is by producing either a title deed or certificate of official search. Further, even if as confirmed by both parties the suit land is registered in the name of the deceased Malombe Mwanga, the Plaintiff has not shown that the defendants can be held responsible for completion of the transaction of sale of the suit land between the deceased Julia Matani Malombe and Richard Mutunga Mailu also deceased. This is for the reason that the Respondents are not administrators of the estate of the said Malombe Mwanga and at the time of the transaction the registered owner of the suit land Malombe Mwanga was already deceased.
28.All the prayers sought in the plaint relate to the suit land and it has been agreed the said land belongs to the deceased Mwanga Malombe. Though the court has observed that there is no proof in the form of the title deed and/or certificate of official search that indeed the land was owned by the deceased it has been admitted by both parties that the said land is indeed registered in the name of the deceased. If the court were to take that as the factual position, then the court must consider the law that governs the property of a deceased person and whether the Defendants can be held responsible for the said property or transactions relating to it.
29.The property of a deceased person is governed under the Law of Succession Act CAP 160 Laws of Kenya. Section 79 provides that the property of a deceased person is to vest in the personal representative and states that:
30.Powers of the personal representatives of the estate of a deceased person are provided for under Section 82 of the Law of Succession Act that:
31.From the foregoing provisions of the law only the personal representative of an estate of a deceased person can deal with the deceased property and in any event he/she cannot sell immovable property before confirmation of grant. Yet in the present case it has been shown that the suit land was sold by Julia Malombe at a time when she had not obtained letters of administration to the estate of the registered owner.
32.On the face of the facts provided it will be safe for the court to find that the transaction between the said seller and the purchaser could amount to intermeddling with the property of the deceased owner of the land in contravention of Section 45 of the Law of Succession Act which provides that:
33.The orders sought by the Applicant could also amount to further intermeddling with the estate of the deceased who at the moment the court is informed that no person appointed as personal representative. Section 83 provides for duties of personal representatives one of which is under subsection d) is:
34.The case of Trouistik Union International & another v Jane Mbeyu & Another  eKLR addressed the question of personal representatives as provided under section 82 of the Law of Succession Act and states that:
35.It is thus the courts view that the Applicants have not shown a prima facie case with a probability of success to warrant issuance of the orders sought. Having found no prima facie case with a probability of success, it is not be necessary to consider the other factors for grant of orders of injunction.
36.The court finds that the Application dated 15th March 2023 lacks merit and the same is hereby dismissed with costs to the respondent.