[2019] KEELC 3783 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 151 OF 2018

HAWA MOHAMED ABDALLA (Suing as the administrator of the Estate of

MOHAMED HUSSEIN ABSURA (DECEASED)...PLAINTIFF/APPLICANT

VERSUS

UNITED CARE LIMITED.......................1ST RESPONDENT/DEFENDANT

AMIR FAUD AHMED .............................2ND RESPONDENT/DEFENDANT

ASHA ABDULKADIR.............................3RD RESPONDENT/DEFENDANT

RULING

1. In the Application dated 30th July, 2018, the Plaintiff is seeking for the following orders:

a. That pending the hearing and determination of the main suit, the Honourable Court be pleased to grant an interim injunction restraining the 1st, 2nd and 3rd Respondents by themselves, their agents, servants, employees or any person claiming under them from, alienating, selling, or in any manner whatsoever interfering with all that parcel of land known as L.R. No. 12715/690.

b. That the Honourable Court be pleased to order and direct that the orders granted be enforced with the assistance of the Officer Commanding Police Station (OCS) Mlolongo Police Station.

c. Costs of the Application be borne by the Respondents.

2. In the Affidavit sworn by the Plaintiff, it has been deponed by the Plaintiff that she is the widow and administrator of the Estate of the late Hussein Absura (deceased); that the late Absura is the registered proprietor of land known as L.R. No. 12715/690 situate in Athi River(the suit property) and that the 1st Respondent is in the process of selling the said land.

3. According to the Plaintiff, the 2nd and 3rd Respondents have been encroaching on the suit land by putting up structures and that the Application for injunction should be allowed.

4. In reply, the 1st Defendant’ Director deponed that after the 1st Defendant conducted due diligence in respect of the suit land, it entered into an Agreement of Sale with one Ahmed Faud Amir; that the suit property was transferred by the Plaintiff’s late husband to one Ahmed Faud Amir and that the 1st Defendant was provided with the duly executed and stamped transfer of the suit property from the said Mohamed Absura to Ahmed Faud Amir and a blank transfer from Mr. Faud to the 1st Defendant.

5. In the Further Affidavit, the Plaintiff deponed that her late husband died on 4th December, 2015; that her late husband could not have executed the Transfer after his death and that the 1st Defendant, in collusion with the 2nd and 3rd Defendants, have severally attempted to unlawfully transfer the suit land.

6. The Plaintiff’s advocate submitted that the 1st Defendant has annexed a Transfer document purportedly signed by the Plaintiff’s husband on 15th July, 2016 way after the Plaintiff’s husband had died; that the Respondent fraudulently obtained the Transfer document and that Section 45(1) of the Law of Succession Act forbids a person from dealing with the Estate of a deceased person without the authority of the court.

7. The Defendants’ advocate submitted that the Plaintiff has failed to demonstrate an upto date search of the records of the Lands Registry relating to the suit property; that the Plaintiff’s late husband lawfully disposed of the suit property and that the Plaintiff has failed to meet the threshold for a prima facie case.

8. The Defendants’ advocate further submitted that the Plaintiff has failed to demonstrate the irreparable injury she will suffer if the orders are not granted and that the remedy of a temporary injunction is issued solely to prevent grave and irreparable injury.

9. The Plaintiff is seeking for an injunction restraining the Defendants from trespassing, alienating, selling or interfering in any manner with L.R. No. 12715/690 pending the hearing of the suit.

10. A prima facie case in civil cases includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal property directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the (Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others (2003) KLR 125).

11. The Plaintiff has deponed that she is the legal administratrix of the Estate of the late Mohamed Hussein Absura (the deceased). Other than the Grant of Letters of Administration issued to the Plaintiff on 5th October, 2017 by the court, the Plaintiff also exhibited on her Affidavit the Certificate of Confirmation of Grant dated 28th February, 2018. One of the properties indicated in the Certificate of Confirmation of Grant is the suit property.

12. The 1st Defendant has averred that it purchased the suit land from the 2nd Defendant; that the 2nd Defendant purchased the land from the Plaintiff’s late husband and that he was given the duly signed and stamped Transfer document between the Plaintiff’s late husband and the 2nd Defendant.

13. The 1st Defendant annexed on its Director’s Affidavit the copy of the Agreement dated 12th August, 2016 between it and the 2nd Defendant. In the said Agreement, the 2nd Defendant was described as the registered proprietor of L.R. No. 12715/690, which is not the position.

14. I say so because the copy of the Grant for L.R. No. 12715/690 exhibited by the 1st Defendant shows that the suit land was transferred from the late Mohamed Hussein Absura to the 2nd Defendant on 30th August, 2016. This means that as at 12th August, 2016, the 2nd Defendant was not the registered proprietor of the suit land as alleged in the Agreement of 12th August, 2016.

15. The 1st Defendant has claimed that the Plaintiff’s late husband transferred the suit land to the 2nd Defendant by way of a Transfer purportedly signed by both the Plaintiff’s late husband and the 2nd Defendant on 15th July, 2016, and that the same was registered on 30th August, 2016. However, the Defendants did respond to the issue of how the Plaintiff’s husband could have signed the Transfer document on 15th July, 2016 and yet, according to the copy of the Death Certificate, he died on 4th December, 2015.

16. Indeed, neither the 2nd Defendant, nor the advocate who purportedly witnessed the Plaintiff’s late husband sign the Transfer document swore an Affidavit to explain the circumstances under which a deceased person could have signed a document.

17. The documents annexed on the 1st Defendant’s Director’s Affidavit, read together with the Plaintiff’s Affidavit and annextures shows, prima facie, that the Estate of the late Mohamed Hussein Absura has been intermeddled with. Indeed, the evidence before this court shows that the Plaintiff has a prima facie case with chances of success.

18. The fact that the suit and is currently registered in favour of the 2nd Defendant shows that the land may be transferred or charged to a third party, thus further putting it out of reach of the Plaintiff. The Plaintiff is therefore likely to suffer irreparable injury that cannot be compensated by an award of damages. For those reasons, an order of injunction should issue pending the hearing and determination of the suit.

19. The Application by the Plaintiff dated 30th July, 2018 is therefore allowed in the following terms:

a. That pending the hearing and determination of the main suit, the Honourable Court be pleased to grant an interim injunction restraining the 1st, 2nd and 3rd Respondents by themselves, their agents, servants, employees or any person claiming under them from, alienating, selling, or in any manner whatsoever interfering with all that parcel of land known as L.R. No. 12715/690.

b. Costs of the Application to be borne by the 1st and 2nd Respondents.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 5TH DAY OF APRIL, 2019.

O.A. ANGOTE

JUDGE