[2019] KEHC 10247 (KLR)
The court declined to grant the applicant's prayers for nullification of the property transfers at this stage, holding that it would be contrary to the principles of natural justice to issue adverse orders against Sasa General Investment Limited and Timescom Enterprises Limited without first affording them an...
Source-derived case information.
- Citation
- [2019] KEHC 10247 (KLR)
- Parties
- Applicant: Mehuba Gelan Kelil; Applicant: Isha Awo Sharrif; Applicant: Towhica Awo Sharrif; Respondent: Abdulkadir Sharif Abdirahman; Applicant: Rahma Ali Godana
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 329 of 2003
- Procedural Posture
- Miscellaneous Application / Interlocutory Directions on Application for Nullification of Property Transfer
- Outcome
- Application for nullification of transfers not granted at this stage; directions issued for service and further hearing.
- Judges
- F Tuiyott
- Legal Topics
- Transfer of Land, Doctrine of Lis Pendens, Prohibitory Orders, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mehuba Gelan Kelil
Applicant
Isha Awo Sharrif
Applicant
Towhica Awo Sharrif
Applicant
Abdulkadir Sharif Abdirahman
Respondent
Rahma Ali Godana
Applicant
Procedural Posture
Miscellaneous Application / Interlocutory Directions on Application for Nullification of Property Transfer
Legal Issues
- 1 Whether the transfer of the suit properties to Sasa General Investment Limited and Timescom Enterprises Limited should be declared null and void.
- 2 Whether adverse orders can be issued against parties who have not been heard.
- 3 Whether the doctrine of lis pendens and existing prohibitory orders affect the validity of the transfers.
Ratio Decidendi
The court declined to grant the applicant's prayers for nullification of the property transfers at this stage, holding that it would be contrary to the principles of natural justice to issue adverse orders against Sasa General Investment Limited and Timescom Enterprises Limited without first affording them an opportunity to be heard. The court emphasized that even if the interests of these parties may be weak, due process requires that they be served with the application and given a chance to respond before any determination affecting their rights is made. The matter was therefore adjourned for service and further hearing.
Court Disposition
Application for nullification of transfers not granted at this stage; directions issued for service and further hearing.
Orders
- Sasa General Investment Limited and Timescom Enterprises Limited to be served with the application dated 7th April, 2015.
- The application to be set down again for hearing after service.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
MILIMANI COMMERCIAL COURTS
SUIT NO. 329 OF 2003
MEHUBA GELAN KELIL
ISHA AWO SHARRIF
TOWHICA AWO SHARRIF administrators of the estate of
AWO SHARIFF MOHAMED..............................APPLICANTS
VS
ABDULKADIR SHARIF ABDIRAHMAN......RESPONDENTS
RAHMA ALI GODANA.........................................PURCHASER
DIRECTONS
1. Rahma Ali Godana (the Applicant) herein has through Counsel filed submissions dated 12th September 2018 in support of her Application of 7th April, 2015. She concludes:-
“In conclusion the Purchaser/Applicant prays that in the interest of justice, fairness and equity this Honourable Court declares null and void the transfer of MARSABIT COUNCIL PLOT GRANT IR NO. 4860 LR NO. 11969/42 and MARSABIT COUNCIL PLOT GRANT IR NO. 5150 LR NO. 11969/258 in favour of Sasa General Investment Limited and Timescom Enterprises Limited on 25th July 2008 and further grant the Prayers as sought in the Purchaser/Applicants application dated 7th April, 2015”.
2. If this Court were to grant the Applicant her way, then it would affect the interests, however weak they may be of Sasa General Investment Limited and Timescom Enterprises Limited over LR. No.11969/42 and 11969/258 respectively. Whilst the Applicant argues that the two acquired the properties inspite of the Prohibitory Orders made herein and in violation of the Doctrine of lis pendens and that interest they have acquired ought to be easily defeated, no Court of Law should issue any adverse Orders against any party before granting him/her/it an opportunity of being heard.
3. I therefore direct that Sasa General Investment Limited and Timescon Enterprise Limited be served with the application of 7th April, 2015 and the same be set down again for hearing.
Dated, Signed and Delivered in Court at Nairobi this 25th day of January, 2019.
…………………………………………………
F. TUIYOTT
JUDGE
PRESENT:-
Ahomo for Issa Purchaser/ Applicant
Mbuya for Mwenesi for Respondent
Nixon – Court Assistant