PHILIP MWANGI GITHINJI v GRACE WAKARIMA GITHINJI [2004] KEHC 315 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL CASE 214 OF 2001 PHILIP MWANGI GITHINJI ………………………………….....……….. PLAINTIFF

VERSUS

GRACE WAKARIMA GITHINJI ……………………………………. DEFENDANT

R U L I N G

By a notice of Motion dated 22nd November 2001, the Plaintiff/ Applicant seeks an order of inhibition against the registration of any dealing involving land Reference No. Muhito/Mbiuini/139 (hereinafter referred to as the suit land).  The Plaintiff has filed a suit against Grace Wakarima Githinji the Defendant/Respondent in which he contends that the suit land forms part of the estate of Githinji Ngumo and that the Defendant has fraudulently caused herself to be registered as the absolute owner of the suit land.  Plaintiff therefore seeks orders in this suit to have the registration of the Defendant as absolute owner of the suit land declared fraudulent and title issued to her nullified.

The Applicant contends that as a beneficiary of the late Githinji Ngumo he stands to loose if the Defendant deals with the suit land.

The Defendant/Respondent has filed a defence in which he admits that he succeeded the suit land from her husband Githinji Ngumo deceased, but denies having done so fraudulently.

The Defendant admits that the Plaintiff is a beneficiary of her late husband but maintains that there are other beneficiaries to whom she is to distribute the suit land.

An order of inhibition issued under section 128 of the Registered Land Act is akin to an order of prohibitory injunction for it restricts the Registered owner and any other person from having their transaction regarding the land in question registered against the title.

Before the court can issue such an order it must be satisfied that the person moving the court for such orders has good grounds for requesting such an inhibition, such grounds would normally be in the form of a sustainable claim over the suit land.

In the instant case the Applicant has filed a suit over the suit land which he claims belonged to the estate of the late Githinji Ngumo.

The Applicant has not however shown that he has any locus to bring a claim on behalf of the estate of the late Githinji Ngumo.  There is no evidence that the Applicant has obtained any letters of administration in respect of the estate of the deceased.  The fact that the Applicant claims to be one of the beneficiaries of the late Githinji Ngumo does not give the Applicant any right to sue on behalf of his estate without first obtaining letters of administration. For these reasons I find that the application for inhibition is not maintainable.  I do therefore reject the application dated 22nd November 2001 and dismiss the same.

Orders accordingly.

Dated signed and delivered this 12th day of November 2004

H. M. OKWENGU

JUDGE