[2018] KEELC 1669 (KLR)
The court found that the applicants had demonstrated a prima facie case with a probability of success, as the suit property was registered in the name of the deceased at the time of his death and the first respondent, not being an administrator of the estate, could not legally transfer the property. The court held...
Source-derived case information.
- Citation
- [2018] KEELC 1669 (KLR)
- Parties
- Plaintiff: Margaret Orango & Elizabeth Gacheru (suing on behalf of the estate of Jared Orang’o Edmond); Defendant: Johanes Boyi Okoba; Defendant: Another (second respondent/company)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 19 of 2018
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Notice of Motion dated 22nd January 2018 allowed in terms of prayer (3) and (4). Temporary injunction granted.
- Judges
- BM Eboso
- Legal Topics
- Fraudulent Transfer of Land, Temporary Injunctions, Administration of Estates, Innocent Purchaser for Value
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Margaret Orango & Elizabeth Gacheru (suing on behalf of the estate of Jared Orang’o Edmond)
Plaintiff
Johanes Boyi Okoba
Defendant
Another (second respondent/company)
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicants have established a prima facie case for grant of a temporary injunction to preserve the suit property.
- 2 Whether the transfer of the suit property by the first respondent was fraudulent and without authority as administrator of the estate.
- 3 Whether the second respondent is an innocent purchaser for value and entitled to protection.
Ratio Decidendi
The court found that the applicants had demonstrated a prima facie case with a probability of success, as the suit property was registered in the name of the deceased at the time of his death and the first respondent, not being an administrator of the estate, could not legally transfer the property. The court held that the applicants were entitled to injunctive orders to preserve the suit property pending the hearing and determination of the dispute. The issue of ownership was not determined at this stage, but the preservation of the property was necessary to prevent further prejudice to the estate.
Court Disposition
Notice of Motion dated 22nd January 2018 allowed in terms of prayer (3) and (4). Temporary injunction granted.
Orders
- A temporary injunction is hereby issued restraining the respondents from dealing with LR No. Nairobi Block 111/78 at Komarock in Nairobi pending the hearing and determination of the suit.
- The suit property shall be preserved until the dispute herein is heard and determined.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN TH ENVIRONMENT AND LAND COURT
AT MILIMANI LAW COURTS
ELC NO. 19 OF 2018
MARGARET ORANGO & ELIZABETH GACHERU (SUING BEHALF
OF THE ESTATE OFJARED ORANG’O EDMOND..................................PLAINTIFFS
=VERSUS=
JOHANES BOYI OKOBA & ANOTHER.................................................DEFENDANT
RULING
1. The plaintiffs/applicants are the administratrix of the estate of the late Jared Orang’o Edmond (deceased) who died on 4th November 2015. At the time of the death of the deceased, the deceased was the registered owner of LR No. Nairobi Block 111/78 at Komarock in Nairobi (suit property).
2. On 23rd March 2016, the first respondent fraudulently transferred the suit property into his name after which he transferred the property to the second respondent. The first applicant discovered the fraud when the second respondent tried to distress for rent against the tenants on the suit property on the grounds that it had become the registered owner.
3. The first respondent was arrested and arraigned before the chief magistrate’s court where he is facing among other charges forgery. It is on this basis that the applicants came to court for injunction order to preserve the suit property until this case is heard and determined.
4. The applicants contend that the deceased never transferred the suit property during his lifetime. It is the first respondent who fraudulently had it transferred into his name before he quickly transferred it to the second respondent which is now the registered owner of the suit property.
5. The second respondent opposed the applicants’ application based on a replying affidavit sworn on 2nd February 2018. The second respondent through one of its directors states that it purchased the suit property from the first respondent after carrying out due diligence ; that it was not party to the alleged fraud by the first respondent and therefore as an innocent purchaser for value , its right to the suit property is protected.
6. I have considered the applicants’ application as well as the opposition to the same by the second respondent. I have also considered the submissions filled by the parties. This being an application for a temporary injunction, I have to decide whether the applicants have met the threshold for grant of an injunction. One of the important considerations is demonstration of a prima facie case.
7. In the instant case, the applicants have demonstrated that the suit property was in the name of the deceased before his death. The first respondent who transferred the suit property to himself before transferring it to the second respondent is not the administrator of the estate of the deceased. He could not therefore legally transfer property of a deceased person without obtaining letters of administration.
8. This Court is not dealing with the issue of ownership at this stage. It is only examining whether on the material before it, the applicants have demonstrated that they have a prima facie case with probability of success. I find that on the material before me, the applicants have demonstrated that they have a prima facie case with probability of success. They are entitled to injunctive orders to preserve the suit property until the dispute herein is heard and determined. I therefore allow the Notice of Motion dated 22nd January 2018 in terms of prayer (3) and (4).
It is so ordered.
Dated, and Signed at Nairobi on this 31stday of July 2018.
E.O.OBAGA
JUDGE
Delivered at Nairobi on this 31st day of July 2018
In the Presence of:-
Mr Kitheka for the Applicant
Mr Kirimi for the Respondent
Court Assistant: Hilda
B M EBOSO
JUDGE
31/7/2018