Kagiri (Suing as the legal representative of the Estate of Robert Kagiri Wakahiu - Deceased) v Kimondo & another [2025] KEELC 651 (KLR)

Kagiri (Suing as the legal representative of the Estate of Robert Kagiri Wakahiu - Deceased) v Kimondo & another (Land Case E018 of 2024) [2025] KEELC 651 (KLR) (19 February 2025) (Ruling)

Neutral citation: [2025] KEELC 651 (KLR)

Republic of Kenya

In the Environment and Land Court at Nanyuki

Land Case E018 of 2024

LN Mbugua, J

February 19, 2025

Between

Linus Mwangi Kagiri

Plaintiff

Suing as the legal representative of the Estate of Robert Kagiri Wakahiu - Deceased

and

Daniel Wamugunda Kimondo

1st Defendant

Simply City Properties Limited

2nd Defendant

Ruling

1. Before me is the plaintiff’s application dated 29. 8.2024 seeking injunctive orders against the defendant. The application is premised on the grounds on the face of the application and the affidavit of the plaintiff who has filed the suit as an administrator of the estate of Robert Kagiri Wakahiu ( Deceased). He contends that the suit property Euaso Nyiro/Suguroi/Block IV/250 belonged to the deceased, but a green card reveals that the same was transferred to the 1st defendant on 10. 7.2017, then to the 2nd defendant on 27. 4.2021. The applicant is apprehensive that the defendants may dispose off the suit property.

2. The 1st defendant has opposed the application vide his replying affidavit dated 5. 11. 2024 where he has given an account of how he bought the suit property from one Linus Mwangi Kagiri and a transfer document was executed in his favour on 5. 6.2017, adding that there was no fraud or collusion in the sale transaction.

3. I have considered all the arguments raised herein including the rival submissions. It is quite apparent that the protagonists are having competing claims of ownership to the suit property. In the case of Cyanamid Co. vs Ethicon Ltd (1975) 1 ALL ER 504; (1975) A.C 396 HL cited in Tritex Industries Limited & 3 others vs National Housing Corporations & another [2014] eKLR, it was held that;“It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial”.

4. Thus the question of ownership ought to be dealt with in a full trial and not in interlocutory applications. It is however crucial to give orders of preservation of the subject matter through an order of injunction. In the circumstances, the application dated 29. 8.2024 is allowed on condition that the injunctive orders shall remain in force for a period of ONE YEAR from the date of delivery of this ruling. The costs of the application shall abide the outcome of the suit.

DATED, SIGNED AND DELIVERED AT NANYUKI THIS 19TH DAY OF FEBRUARY 2025 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Muhonja for DefendantsMoriasi for PlaintiffNancy Mwangi – Court Assistant