[2017] KEELC 3268 (KLR)
The court found that the issues raised—whether the land was gifted, sold, or fraudulently transferred—are substantive and can only be resolved at a full trial with oral evidence and witness testimony. However, to preserve the subject matter of the suit and prevent possible disposal or further transfer of the...
Source-derived case information.
- Citation
- [2017] KEELC 3268 (KLR)
- Parties
- Applicant: J S Ole S; Defendant: T W N; Defendant: M S S; Defendant: P N S; Defendant: District Land Registrar-Narok
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Cause 152 of 2017
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted pending hearing and determination of the suit
- Judges
- MN Kullow
- Legal Topics
- Fraudulent Transfer, Ownership Dispute, Matrimonial Property, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J S Ole S
Applicant
T W N
Defendant
M S S
Defendant
P N S
Defendant
District Land Registrar-Narok
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff/Applicant has established a prima facie case.
- 2 Whether the Plaintiff/Applicant had gifted the Respondent the parcels of land.
- 3 Whether the Respondent purchased the said land from the Applicant.
Ratio Decidendi
The court found that the issues raised—whether the land was gifted, sold, or fraudulently transferred—are substantive and can only be resolved at a full trial with oral evidence and witness testimony. However, to preserve the subject matter of the suit and prevent possible disposal or further transfer of the disputed parcels, the court determined that an interlocutory injunction was warranted. The Applicant established a prima facie case sufficient to justify preservation of the land pending trial, and the balance of convenience favoured maintaining the status quo until the substantive issues are determined.
Court Disposition
interlocutory injunction granted pending hearing and determination of the suit
Orders
- An order of injunction is issued restraining the 1st, 2nd, and 3rd Respondents from dealing, transferring, disposing of, or in any manner interfering with the parcels of land in dispute pending hearing and determination of the suit.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 152 OF 2017
J S OLE S…….....................................................PLAINTIFF/APPLICANT
-VERSUS-
T W N…......…....……………..........................................1ST DEFENDANT
M S S…….….…....……………….................................2ND DEFENDANT
P N S…..…....………………..........................................3RD DEFENDANT
DISTRICT LAND REGISTRAR-NAROK………………4TH DEFENDANT
RULING
The Application before me is dated the 20th December, 2016 which is brought by way of Notice of Motion seeking inter alia an order of injunction restraining the 1st, 2nd and 3rd Respondents from dealing, transferring, disposing of in any manner interfering with all the parcels of land known as [Particulars withheld] and [Particulars withheld] respectively.
The Application is premised on the grounds that the Applicant is the legal owner of the two parcels of land and the 1st Respondent fraudulently transferred the said parcels of land to the 2nd and 3rd Respondents. The Applicant further contends that the Respondents are in the process of selling and/or transferring the two parcels of land albeit without stating to whom the said parcels of land are being transferred to.
The Application is further supported by the Affidavit J S Ole S and the annextures thereto marked “JSOS I TO JSOS V”.
The Applicant states that sometime in December 2000 he had asked the 1st Respondent to marry him after the 1st Respondent allegedly fraudulently misrepresented to the Applicant she was a free woman and not married at the time or previously and on the strength of that, the couple solemnized their marriage at [Particulars withheld] ACK Church.
The Applicant contends that he transferred the two parcels of land as token of his love and affection to the Respondent subsequent to the marriage.
While the couple lived as husband and wife, the 1st Respondent deserted their matrimonial home after a Mr. N came to the couples homestead and it was at this time that he realized that the 1st Respondent was married to another man.
Subsequent to the above, the Applicant filed the present application after the Respondent left the matrimonial home and transferred the parcels of land to the Respondent.
The 1st Respondent opposes the Application on behalf of herself and on behalf of the 2nd and 3rd Respondents who are her daughters by way of a Replying Affidavit sworn on the 31st January, 2017 and filed in court on 14th February, 2017.
The 1st Respondent contends that she purchased the parcel of land between 1998 and 2002 at the rate of kshs. 50,000/per acre- from the Plaintiff and he later signed the transfer after obtaining the consent of the Land Control Board.
The 1st Respondent contends that it was after she purchased the land that the Plaintiff moved into her house upon their marriage and that she lost documents evidencing the purchase in a fire that gutted her house in 2003.
I have read the Application and the Supporting Affidavit and the Respondent’s Affidavit. I have listened to submissions by counsel for the parties and it is my considered view that the issue for determination at this interlocutory stage are the following:-
1. Whether the Plaintiff/Applicant has established a prima facie case
2. Whether the Plaintiff/Applicant had gifted the Respondent the parcels of land
3. Whether the Respondent herein purchased the said land from the Applicant
The above issues can only be determined upon hearing oral evidence and calling of witnesses at full trial.
The parties competing interest can only be addressed during the trial and in view of the above, I am inclined to preserve the suit land pending the hearing and determination of the suit and thus allow the application.
Cost of the application shall be in the cause.
Dated, SignedandDeliveredin open court atNAROKon this 6thday ofApril, 2017
Mohammed Noor Kullow
Judge
In the presence of:-
Mr. Muhuhu for the Defendant/Respondent
N/A for the Plaintiff/Applicant
CA:Timothy