[2016] KEHC 5296 (KLR)
The court found that both the applicant and the 2nd defendant had paid monies for the disputed property, and that the applicant's sale agreement was first in time. However, the property lacked a title deed and there was a dispute as to whether the 1st defendant had a good title to pass. Given the competing claims...
Source-derived case information.
- Citation
- [2016] KEHC 5296 (KLR)
- Parties
- Applicant: Iddi Shillingi Abdalla; Respondent: Sauda Suleiman Ali; Respondent: Edward K. Mulongo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 302 of 2015
- Procedural Posture
- Civil Suit / Interlocutory Application for Injunction
- Outcome
- Interlocutory injunction granted in terms of prayers 3 and 4 of the application. Each party to bear their own costs.
- Judges
- AA Omollo
- Legal Topics
- Injunctive Relief, Ownership Dispute, Sale of Land, Priority of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iddi Shillingi Abdalla
Applicant
Sauda Suleiman Ali
Respondent
Edward K. Mulongo
Respondent
Procedural Posture
Civil Suit / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the 2nd defendant from trespassing or developing the suit property pending determination of the suit.
- 2 Whether the 1st defendant had a valid title to sell the property to the applicant.
- 3 Which of the competing sale agreements should be upheld.
Ratio Decidendi
The court found that both the applicant and the 2nd defendant had paid monies for the disputed property, and that the applicant's sale agreement was first in time. However, the property lacked a title deed and there was a dispute as to whether the 1st defendant had a good title to pass. Given the competing claims and the need to preserve the property, the court held that a prima facie case had been established by the applicant. The balance of convenience required that both parties be restrained from undertaking any activities on the property pending the hearing and determination of the suit. The court therefore granted the injunction sought by the applicant, restraining the 2nd defendant...
Court Disposition
Interlocutory injunction granted in terms of prayers 3 and 4 of the application. Each party to bear their own costs.
Orders
- The 2nd Defendant/Respondent by himself, his agents, servants, employees or anyone acting through him is restrained from trespassing, developing or undertaking any activity on the suit property pending hearing and determination of the suit.
- The OCS, Likoni Police Station is ordered to supervise and implement these orders.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC CIVIL SUIT NO. 302 OF 2015
IDDI SHILLINGI ABDALLA.......................................................PLAINTIFF/APPLICANT
-VERSUS-
SAUDA SULEIMAN ALI...................................................1ST DEFENDANT/RESPONDENT
EDWARD K. MULONGO..................................................2ND DEFENDANT/RESPONDENT
RULING
1. The application before Court is dated 13. 11. 2015 in which the applicant/plaintiff seeks the following orders ;
1) Spent
2) Spent
3) That the 2nd Defendant/Respondent by himself, his agents and/or servants and/or employees and/or anybody acting through him be restrained from trespassing and/or developing and/or do any activity on the house with land measuring approximately 51 ft by 76 ft at Majengo Mapya in Likoni pending hearing and determination of this suit.
4) That the OCS, Likoni Police Station be ordered to supervise and/or implementation of these orders.
5) The costs of this Application be awarded to the Applicant.
2. The application is supported by an affidavit and grounds listed on the face of the application. It is the applicants' case that he bought the suit property from the 1st Respondent/Defendant. The applicant annexed a copy of the sale agreement between the 1st Defendant and himself to buttress his claim.
3. The 1st defendant has not filed any document to oppose the application. The 2nd Respondent/Defendant filed a detailed replying affidavit. The 2nd respondent is also laying claim to the suit property having bought the same from Johnstone Muhindi Muteve who was husband to the 1st Defendant. The 2nd Respondent deposed that the vendor had placed a restriction through the area Chief hence the property was not available for sale by the 1st defendant. In support of his claim, he annexed a sale agreement undated but executed on 4. 4.14, paying – in slip to an account held by the seller (Johnstone), a letter to the Chief by Mr Muhindi and letter of withdrawal and transfer agreement.
4. From the pleadings, it is apparent the 1st Defendant and Johnstone Muhindi were a couple but have since divorced. The 1st Defendant sold the land to the Applicant on 18th September 2013 while her husband sold to the 2nd Defendant on 4. 4.14 the same parcel of land. Mr Johnstone Muhindi has not been joined in these proceedings although at one point his participation may be necessary.
5. The applicant submits that since his agreement was the first in time, he is entitled to the orders sought. The 2nd defendant submits otherwise and argue that the vendor Johnstone Muhindi had placed a caveat on 5th July 2013 through the area Chief withdrawing it only on 6th May 2014 and on which date the said Johnstone transferred the property to the 2nd defendant.
6. The property does not have a title deed. The 2nd Defendant argues the 1st Defendant did not have a good title to pass on to the applicant. The 2nd defendant has not denied that he began development on the suit property. Since both parties have paid monies for the property in dispute, it is imperative that any activity on the property be withheld for this Court to ascertain through hearing who owned the property between the 1st defendant and Johnstone Muhindi or whether they owned the property in equal shares. Secondly which of the sale a agreements should be upheld.
7. Because of the circumstances of this case, I am satisfied that there is a prima facie case put forth by the applicant which has a probability of succeeding . Consequently I find that there is merit in this motion and allow it in terms of prayer 3 and 4. Each of the parties to bear their respective costs.
8. In order to preserve the suit property, the applicant is also directed not to undertake any activities on this property without leave of the Court that would prejudice the interests of 2nd Defendant.
Ruling dated and delivered at Mombasa 13th day of May 2016
A. OMOLLO
JUDGE