[2007] KEHC 2312 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success, as the evidence indicated that the plaintiff never transferred the land to the defendant and that the Land Disputes Tribunal award, which purported to transfer the land, had been declared null and void. The...
Source-derived case information.
- Citation
- [2007] KEHC 2312 (KLR)
- Parties
- Plaintiff: Lonrho Agribusiness East; Defendant: David Kimitei Boit
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 47 of 2007
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction
- Outcome
- interlocutory injunction granted in favour of the plaintiff; costs to the applicant
- Judges
- K Bauni
- Legal Topics
- Injunctive Relief, Land Title Disputes, Fraudulent Transfer, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lonrho Agribusiness East
Plaintiff
David Kimitei Boit
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with land parcel No. PIONEER/NGEIRA/BLOCK(EATC)/1851 pending the hearing and determination of the suit.
- 2 Whether the defendant should be ordered to deposit the original title deed and transfer form for the said land into court pending the hearing of the suit.
- 3 Whether the transfer of the land to the defendant was fraudulent or valid in light of the nullified tribunal award.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success, as the evidence indicated that the plaintiff never transferred the land to the defendant and that the Land Disputes Tribunal award, which purported to transfer the land, had been declared null and void. The defendant's subsequent actions to effect the transfer, including the use of the court Executive Officer to execute transfer forms, were unsupported by any valid legal basis. In the absence of any opposition from the defendant and given the irregularities surrounding the transfer, the court determined that injunctive relief was warranted to preserve the subject matter of the suit. The...
Court Disposition
interlocutory injunction granted in favour of the plaintiff; costs to the applicant
Orders
- A temporary injunction is granted restraining the defendant, his servants or agents from trespassing into, entering upon, planting, transferring, leasing, encumbering, taking possession and/or in any other way whatsoever interfering with land parcel No. PIONEER/NGEIRA/BLOCK(EATC)/1851 pending the hearing and...
- The defendant is ordered to deposit the original title deed and transfer form for the said land into court pending the hearing of the suit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Suit 47 of 2007
LONRHO AGRIBUSINESS EAST:...................PLAINTIFF
VERSUS
DAVID KIMITEI BOIT:....................................DEFENDANT
R U L I N G
The applicant/plaintiffs seeks for a temporary injunction restraining the defendant/Respondent, his servants or agents from trespassing into, entering upon, planting, transferring, leasing encumbering, taking possession and or in any other way whatsoever interfering with land parcel No. PIONEER/NGEIRA/BLOCK(EATC)/1851 pending the hearing and determination of this suit. He also seeks for an order directing the Defendant/Respondent to deposit the original title deed and transfer form for the said land into court pending the hearing of the suit.
The Respondent, despite being given ample time, did not file grounds of opposition or a replying affidavit. Hearing therefore proceeded exparte.
DAVID KORIR a Manager with the applicant company swore a supporting affidavit. He deponed that the plaintiff company had several links of land in Uasin Gishu district. One was parcel No. LR.NO.19547( LR..NO.7739/14) which was subdivided. One of the resultant plot was plot No. F481 which was later registered as PIONEER/NGERIA BLOCK (EATC) 1851 subject matter of this suit. The plaintiff started to sell the resultant plots. Plot No. F481 was offered to a group called Kabogo Self Help Group but they were unable to pay purchase price. It was then offered to Elijah Tuwei who paid the purchase price and took possession. However in the year 2002 the respondent filed a dispute over the land in the Land Disputes Tribunal. the Tribunal awarded the land to the respondent but he was ordered to pay the purchase price. Defendant attempted to enforce the award but there was no objection which was upheld by the court on the ground that no court had been obtained for Land Control Board. The award was deemed as null and void. There has been no appeal against that decision. The defendant however asked the court Executive Officer to execute transfer forms and the land was transferred to him. Applicant said this was fraud. He never signed any transfer forms.
I have considered the application. It is clear that the applicant has a prima facie case with chances of success. He has stated that he never transferred the land to the respondent. The Tribunal award was declared null. It is therefore not clear on what basis or how the respondent caused the land to be transferred to him.
In the circumstances I allow the appeal and grant prayers ( c ) and (d) as prayed in the application. the applicant will also have the costs of the application.
Dated and Delivered at Eldoret this 11th day of June,2007.
KABURU BAUNI
JUDGE
DELIVERED IN THE PRESENCE OF:
C/C - David
Mr. Were for Gicheru for applicant
N/A for Respondent.