[2008] KEHC 1869 (KLR)
The court found that the plaintiff had established a prima facie case of fraud in the transfer of the suit property, as the transfer was effected without surrender of the original title and without proper authorization from the legitimate directors. The absence of a substantive response from the defendants further...
Source-derived case information.
- Citation
- [2008] KEHC 1869 (KLR)
- Parties
- Plaintiff: Beacon Towers Limited; Defendant: Trent Holdings Limited; Defendant: Maurice Aldous Opar; Defendant: Enock H. Tuitoek; Defendant: Registrar of Titles
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 121 of 2008
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interlocutory injunction granted against the 1st, 2nd, and 3rd defendants; declined against the 4th defendant.
- Legal Topics
- Fraudulent Transfer of Land, Injunctive Relief, Company Directorship Disputes, Title Verification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beacon Towers Limited
Plaintiff
Trent Holdings Limited
Defendant
Maurice Aldous Opar
Defendant
Enock H. Tuitoek
Defendant
Registrar of Titles
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction against the defendants.
- 2 Whether the transfer of LR 209/13559 IR 75461 to the 1st defendant was fraudulent and in contravention of the law.
- 3 Whether an injunction can issue against the 4th defendant, the Registrar of Titles, as a government officer.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case of fraud in the transfer of the suit property, as the transfer was effected without surrender of the original title and without proper authorization from the legitimate directors. The absence of a substantive response from the defendants further strengthened the plaintiff's case. The court held that the balance of convenience favored maintaining the status quo to prevent further dealings with the property pending determination of the main suit. However, the court declined to issue an injunction against the 4th defendant, the Registrar of Titles, as such relief is barred by the Government Proceedings Act.
Court Disposition
Interlocutory injunction granted against the 1st, 2nd, and 3rd defendants; declined against the 4th defendant.
Orders
- An injunction is issued restraining the 1st, 2nd, and 3rd defendants from selling, charging, alienating, or constructing upon LR 209/13559 IR 75461 until determination of the main suit.
- Costs of the application awarded to the plaintiff against the 1st, 2nd, and 3rd defendants.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 121 of 2008
BEACON TOWERS LIMITED ….................…………… PLAINTIFF
VERSUS
TRENT HOLDINGS LIMITED ……..………… 1ST DEFENDANT
MAURICE ALDOUS OPAR …………………. 2ND DEFENDANT
ENOCK H. TUITOEK ………………….……… 3RD DEFENDANT
REGISTRAR OF TITLES ………..……………. 4TH DEFENDANT
RULING
Application for injunction dated 25th March 2008
I Procedure
1. This matter, concerning an allegation of a fraudulent transfer of LR 209/13559 IR 75461 to third parties by the second and 3rd defendant herein Maurice Aldous Opar and Enock H. Tuitoek respectively to M/s Trent Holdings Limited, the 1st defendant herein was brought during the court vacation before Visram Judge.
2. The Hon. Judge issued temporary injunction restraining the defendants from selling, charging, alienating constructing upon LR.209/13559 – the suit property herein. These orders were extended by Osiemo J on 8 April 2008.
3. The file was there after placed before me for inter parties hearing on 28 April 2008. On that date the defendant/respondent stated they required time to file the necessary papers and allow their advocates come on record. The court granted an adjournment and further gave leave to the parties to file affidavit in reply. The inter party date was reserved for 4 June 2008.
4. On 4th June 2008, apart from the advocate for the 1st defendant, the 2nd, 3rd and 4th defendants failed to enter appearance and or come on record in this matter. No reply in the application was filed. M/s S. Adere for 2nd defendant came on record but was unable to file a replying affidavit.
5. This Court proceeded with the hearing of the application for an injunction dated 28th March 2008 under Order 1Xb r3 (a) Civil Procedure Rules being satisfied that the defendants were duly served.
III: Application for injunction
6. The company plaintiff M/s Beacon Towers Limited alleged that it had two directors. Later three being Kantibhai Maganbhai Patel and Harish Ashabhai. The third director was so appointed on 15 June 2007 being Pritibala Shah, were the proprietors of the suit land LR 209/13559; LR 75461. Registration of Titles Act.
7. The said directors allege that upon the death of one of one of the directors necessitating the appointment of Pritibala Shah. The 2nd and 3rd defendant purporting to the directors transferred the suit land in question by way of way of a sale agreement to the 1st defendant company. This was so done whilst the plaintiff directors held the title.
8. They claim fraud occurred basically when the law required for any transfer to occur there must be the surrender of the original title. In this case a copy of the title only, was provided for purposes of the transfer.
9. The purported buyers/purchasers of the land defendant No. 1 did so without verifying who the correct directors were.
10. The plaintiff pray that the defendants be restrained from selling, alienating or attempt to construct on the suit premises till the determination of the main suit.
11. Letters of undertaking has been duly issued by the plaintiff in event the orders sought were not correctly obtained.
III: Opinion
12. The allegations before Court clearly shows that there is a prima facie case made out against the defendant to warrant an injunction to issue against them.
13. I accordingly grant the application for injunction till the determination of the suit against the 1, 2 and 3 defendants. I award costs to the plaintiff applicant to be paid by defendant 1, 2 and 3.
14. There will be no injunction issued against the 4th defendant who is protected by the Government Proceedings Act Cap. 40 namely, no injunction can issue against the government.
DATED THIS 5TH DAY OF JUNE 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
W . Amoko instructed by Inamdar & Inamdar & Co. Advocates for the plaintiff – present
P. Patel instructed by Pramod Patel & Co. Advocates for 1st defendant – present
S. Adere instructed by for Adere & Co. Advocates for the 3rd defendant–present
No appearance for 2nd and 4th defendants.