[2017] KEELC 2190 (KLR)
The court found that the Plaintiffs had established a prima facie case by demonstrating that they were the registered proprietors of the Suit Property and that the transfer to the 1st Defendant was allegedly fraudulent. The Plaintiffs showed that they would suffer irreparable harm if the Suit Property was sold,...
Source-derived case information.
- Citation
- [2017] KEELC 2190 (KLR)
- Parties
- Plaintiff: Charles Ray Coulston; Plaintiff: Darlene Ann Coulston; Plaintiff: Francis Mbuvi Maithia; Defendant: Henry Kiarie Waweru; Defendant: Chief Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 350 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Application for Temporary Injunction
- Outcome
- application for temporary injunction allowed
- Judges
- AK Bor
- Legal Topics
- Fraudulent Transfer of Land, Temporary Injunctions, Irreparable Harm, Proprietorship Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ray Coulston
Plaintiff
Darlene Ann Coulston
Plaintiff
Francis Mbuvi Maithia
Plaintiff
Henry Kiarie Waweru
Defendant
Chief Land Registrar
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the Plaintiffs have met the criteria for the grant of a temporary injunction.
- 2 Whether the Plaintiffs will suffer irreparable harm if the injunction is not granted.
- 3 Whether the alleged transfer of the Suit Property to the 1st Defendant was fraudulent.
Ratio Decidendi
The court found that the Plaintiffs had established a prima facie case by demonstrating that they were the registered proprietors of the Suit Property and that the transfer to the 1st Defendant was allegedly fraudulent. The Plaintiffs showed that they would suffer irreparable harm if the Suit Property was sold, transferred, or encumbered before the suit was determined, as this would disrupt the operations of the rehabilitation centre for street children. The court was satisfied that damages would not be an adequate remedy in the circumstances. The absence of any response from the Defendants further supported the Plaintiffs' case. Consequently, the court granted the temporary injunction...
Court Disposition
application for temporary injunction allowed
Orders
- A temporary injunction is granted restraining the Defendants from selling, disposing of, transferring, encumbering or interfering with L.R. No. 36/880/1 Nairobi until the suit is determined.
- The Plaintiffs are awarded costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 350 OF 2017
CHARLES RAY COULSTON.…...….................……1ST PLAINTIFF
DARLENE ANN COULSTON………………………2ND PLAINTIFF
FRANCIS MBUVI MAITHIA…………..……….........3RD PLAINTIFF
VERSUS
HENRY KIARIE WAWERU.....................................1ST DEFENDANT
CHIEF LAND REGISTRAR…………..…………..2ND DEFENDANT
RULING
The Plaintiffs seek a temporary injunction to restrain the Defendants from selling, disposing of, transferring, encumbering or interfering with the land known as L.R. No. 36/880/1 Nairobi (“the Suit Property”) until this suit is determined.
The Plaintiffs are trustees of “Made In The Streets” a registered society and charitable children’s institution. The Plaintiffs acquired the Suit Property and were registered as the proprietors on 23/4/1999. They developed the Suit Property and run a rehabilitation centre for street children, a vocational training centre and a playfield for the street children. The Plaintiffs discovered on 22/5/2017 that the original title document for the Suit Property was missing and on conducting a search at the Lands Office learnt that the Suit Property was transferred to the 1st Defendant on 31/12/2015 with the consideration indicated as Kshs. 25,000,000/=. They reported the matter to the police to investigate the fraudulent transfer of their Suit Property and also filed this suit.
The court granted interim orders and directed the Plaintiffs to serve the Defendants. The 1st Defendant could not be traced for service. On the Plaintiffs application, an order for substituted service was made and the 1st Defendant was served vide an advertisement which appeared in the Daily Nation of 27th June 2017. The Defendants have not entered appearance or filed any papers.
The question is, do the Plaintiffs meet the criteria for the grant of the temporary injunction?
The Plaintiffs urge that the Defendants fraudulently transferred the Suit Property and that they will suffer irreparable harm unless the orders are granted.
The Plaintiffs who run a rehabilitation centre for street children on the Suit Property will suffer irreparable harm if the Suit Property is sold, transferred or encumbered by the Defendants before this suit is heard and determined as they can be evicted from the Suit Property and the operations of the street children rehabilitation centre paralysed or brought to a halt. Such damage cannot be compensated by an award of damages.
The court is persuaded that the orders sought ought to issue. The application dated 25th May 2017 is allowed with costs to the Plaintiffs.
Dated and delivered at Nairobi this 24th day of July 2017.
K. BOR
JUDGE
In the presence of: -
Ms Kayoi for the Plaintiffs
No appearance for the Defendants
Mr. V. Owuor- Court Assistant