[2012] KEHC 5221 (KLR)
The court found that the plaintiffs had established a prima facie case that the sale of the suit property may have been fraudulent and unauthorized, as the defendants were no longer officials of the society and the sale was not sanctioned by the trustees. The court further held that the plaintiffs demonstrated a...
Source-derived case information.
- Citation
- [2012] KEHC 5221 (KLR)
- Parties
- Plaintiff: Julius Dickson Olang; Plaintiff: Walter Ogeka; Plaintiff: Charles Odongo; Plaintiff: The Trustees Global Mission in Kenya; Defendant: Richard Ojungu; Defendant: David Ogweno; Defendant: George Osodo; Defendant: Prex Laboratory Supplies Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 126 of 2010
- Procedural Posture
- Chamber Summons Application / Interlocutory Ruling on Injunction
- Outcome
- Interim injunction granted in favour of the plaintiffs pending hearing and determination of the suit.
- Legal Topics
- Fraudulent Transfer of Land, Injunctive Relief, Society Property Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Dickson Olang
Plaintiff
Walter Ogeka
Plaintiff
Charles Odongo
Plaintiff
The Trustees Global Mission in Kenya
Plaintiff
Richard Ojungu
Defendant
David Ogweno
Defendant
George Osodo
Defendant
Prex Laboratory Supplies Ltd
Defendant
Procedural Posture
Chamber Summons Application / Interlocutory Ruling on Injunction
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case for grant of an interlocutory injunction.
- 2 Whether the sale of land parcel Kisumu / Manyatta “A”/ 2156 was fraudulent and unauthorized by the trustees.
- 3 Whether the plaintiffs stand to suffer irreparable harm if injunctive orders are not granted.
Ratio Decidendi
The court found that the plaintiffs had established a prima facie case that the sale of the suit property may have been fraudulent and unauthorized, as the defendants were no longer officials of the society and the sale was not sanctioned by the trustees. The court further held that the plaintiffs demonstrated a likelihood of suffering irreparable harm if the property was interfered with before the suit was determined. The balance of convenience favored preserving the status quo. Accordingly, the court granted interim injunctive orders restraining the defendants and their agents from trespassing on, interfering with, or dealing in any way with land parcel Kisumu / Manyatta “A”/ 2156...
Court Disposition
Interim injunction granted in favour of the plaintiffs pending hearing and determination of the suit.
Orders
- Interim orders of injunction restraining the defendants, their servants, agents, employees, or representatives from trespassing onto or interfering with the activities of the plaintiffs on land parcel Kisumu / Manyatta “A”/ 2156 pending the hearing and determination of the suit.
- The 4th defendant is injuncted from selling, disposing, charging, or in any other way dealing with land parcel Kisumu / Manyatta “A”/ 2156 pending the determination of the suit.
Full Case Text
Judgment text and source record
32 paragraphs
JULIUS DICKSON OLANG……………………………………........................……………..1ST PLAINTIFF
WALTER OGEKA ………………………………………....................………………………2ND PLAINTIFF
CHARLES ODONGO ………………………………........................…………………………3RD PLAINTIFF
THE TRUSTEES GLOBAL MISSION IN KENYA …....................................………………….4TH PLAINTIFF
VERSUS
RICHARD OJUNGU ………………………….............................……………………….…...1ST DEFENDANT
DAVID OGWENO…………………………………...........................………………………..2ND DEFENDANT
GEORGE OSODO ………………………………..............................………………………..3RD DEFENDANT
PREX LABORATORY SUPPLIES LTD ………....................................…………………….4TH DEFENDANT
RULING
By Chamber summons application dated 3rd August 2010, the applicants pray for the following orders:-
1. THAT matter be certified and leave be granted to have the matter heard urgently during vacation
2. THAT the applicants be granted leave to sue the defendants.
3. THAT any other interested parties be served by way of advertisement in the daily newspapers.
4. The cost of this application be provided for.
The said application is supported by the affidavit of Julius Dickson Olang sworn on 3rdf August 2010. Global Mission in Kenya is a registered Society.The said society previously owned land parcel number Kisumu / Manyatta “A”/ 2156.
It is the applicant’s case that the said parcel of land was sold fraudulently by the 1, 2, and 3rd defendants to the 4th defendant. They argue that though the said defendants were members of the society as well as its officials they have since ceased.It was the plaintiffs argument that the purported sale of the Church property was never sanctioned by the trustees. It has further been established by the plaintiffs that the amount of money spent for the development of the church was sourced from Canada where the parent Ministry is.
There are also two (2) material affidavits in support of the applicants application. The first affidavit is that which was sworn by one George Okoto Osodo, the 3rd defendant on 19th August 2010. He has distanced himself from the alleged sale of the plaintiffs land to the 4th defendant. In fact his argument is that the signature and the identity card in the agreement are not his.
The further affidavit of the 1st plaintiff has an attachment therein, namely annexture DO 5 (b) where an advocate one James Miruka Owuor has denounced the Sale agreement dated 14th April 2010 between Global Mission in Kenya and the 4th defendant.
I have further read the attached letters from the Registrar of Societies. From the Registrar’s correspondence its prima facie clear that the new outfit registered by the defendants called New Global Fellowship in Kenya was deregistered and that the 4th defendant is the only entity now recognized by the registrar.
The 4th defendant through the affidavit of Kennedy Otieno Panya clearly admits the wrangles within the church. It may be true that it’s a purchaser for value without notice. However it seems to me that the 4th defendant, if the facts remain as they are may have been defrauded. Nonetheless the issue of fraud is reserved for trial. For now it’s necessary to address the interlocutory matters.
Having perused the affidavit evidence herein I am convinced that the plaintiffs have established a prima facie case. They have further established that unless injunctive orders are granted, they stand to suffer irreparable harm and loss. Consequently, I shall allow prayer 3 of the application namely:-
(a) That there shall be interim orders of injunction restraining the defendants its servants or their agents, employees or representatives from trespassing onto, interfering with the activities of the 1st, 2nd, 3rd and 4th plaintiffs on land parcel number Kisumu /Manyatta “A”/ 2156 pending the hearing and determination of this suit.
(b)The 4th defendant pending the determination of this suit is hereby injuncted from selling, disposing, charging or in any other way dealing with land parcel number Kisumu / Manyatta “A” / 2156.
(c)Cost to the applicants.
Dated, signed and delivered at Kisumu this 29th of February 2012
H. K. CHEMITEI
JUDGE
In the presence of:
……………………………………………Advocate for Applicant
…………………………………………. for Respondent
HKC/aao