[2015] KEELC 233 (KLR)
The court found that the Plaintiff had established a prima facie case with a probability of success because there was no evidence that spousal consent was obtained prior to the transfer of the suit property to the 1st Defendant, as required by section 93(3) and (4) of the Land Registration Act. Additionally, the 2nd...
Source-derived case information.
- Citation
- [2015] KEELC 233 (KLR)
- Parties
- Applicant: Miriam Mukami Ndwiga; Respondent: Simhi Azmon; Respondent: James Maroko Osiemo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 226 of 2014
- Procedural Posture
- Civil Application / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Spousal Consent, Injunctions, Land Transfer, Fraudulent Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriam Mukami Ndwiga
Applicant
Simhi Azmon
Respondent
James Maroko Osiemo
Respondent
Procedural Posture
Civil Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the transfer of the suit property to the 1st Defendant was valid in the absence of spousal consent.
- 2 Whether the Plaintiff has established a prima facie case for the grant of an injunction restraining the Defendants from interfering with the suit property.
- 3 Whether the transfer was executed under duress or fraud.
Ratio Decidendi
The court found that the Plaintiff had established a prima facie case with a probability of success because there was no evidence that spousal consent was obtained prior to the transfer of the suit property to the 1st Defendant, as required by section 93(3) and (4) of the Land Registration Act. Additionally, the 2nd Defendant's allegations of duress and lack of voluntary execution of the transfer documents raised serious questions regarding the validity of the transaction. In the absence of proof of spousal consent and in light of the allegations of duress, the court determined that it was appropriate to grant an interlocutory injunction to preserve the status quo pending the hearing and...
Court Disposition
application allowed
Orders
- An order of injunction is issued restraining the Defendants, their agents, assigns or anybody acting on their behest from entering, evicting, trespassing or in any other manner interfering with the Plaintiff's peaceful and utilization of parcel of land number 1705/359 (original number 1705/84/24) pending the hearing...
- The costs of the Application to be in the cause.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.226 OF 2014
MIRIAM MUKAMI NDWIGA............................PLAINTIFF/APPLICANT
VERSUS
SIMHI AZMON
JAMES MAROKO OSIEMO...........................DEFENDANTS/RESPONDENTS
R U L I N G
What is before me is the Application by the Plaintiff dated 2nd December 2014 seeking for the following orders:
(a) THAT this matter be certified urgent and service of the same be dispensed with in the first instance.
(b) The Hon. Court be pleased to order for the caveat/inhibition to be placed over parcel No.1705/359 (original No.1705/84/24) pending the hearing of this application interpartes.
(c) That the Hon. Court be pleased to issue any order of injunction restraining the Defendants, their agents, assigns or anybody acting on their behest from entering, evicting, trespassing or in any other manner interfering with the Plaintiff's peaceful and utilization of parcel No.1705/359 (original No.1705/84/24) until this application is heard interpartes.
(d) That this Hon. Court do confirm prayers, a, b, and c above until this suit is heard and determined.
The Application is premised on the grounds that the Plaintiff and her family lives on the suit land; that the 2nd Defendant who is the Plaintiff's husband has sold to the 1st Defendant the family land and that the Plaintiff does not have any other place to go if evicted.
In his Replying Affidavit, the 2nd Respondent deponed that the 1st Defendant offered him a friendly loan of Kshs.400,000; that he was unable to refund the said amount as agreed and that the 1st Defendant through administration authorities intimidated him and that he signed the transfer documents out of fear.
According to the 2nd Respondent, the transfer of the suit property was not freely executed but was obtained through duress.
The 2nd Defendant denied ever attending the Land Control Board to obtain the consent to transfer the property.
On his part, the 1st Defendant deponed that he is the registered proprietor of the suit property having purchased it from the 2nd Defendant at a consideration of Kshs.417,000.
According to the 1st Defendant, the 2nd Defendant sold the suit property out of his own volition.
The parties' advocates filed brief submissions. The said submissions are a reiteration of the depositions in the affidavits. I have considered the said submissions and the authorities.
It is not in dispute that the 2nd Defendant, who is the Plaintiff's husband was registered as the proprietor of the suit property on 14th July 2008.
According to the copy of the Certificate of Title annexed on the Application, the suit property was transferred in favour of the 1st Defendant on 18th June 2014.
Although the 2nd Defendant has annexed the sale agreement dated 3rd June 2011, between himself and the 1st Defendant in respect of the suit property, the 2nd Defendant has denied that he ever signed the agreement.
The 2nd Defendant has deponed that he signed the transfer document under duress and that the transfer of the suit property to the 1st Defendant was fraudulently done.
The 1st Defendant has not stated whether indeed a spousal consent was obtained before the suit property was transferred in his favour. In view of the provisions of section 93(3) and (4) of the Land Registration Act, a spousal consent is required before land can be transferred.
Indeed, in the absence of prove that the Plaintiff's consent was sought and obtained before the transfer of the suit property to the 1st Defendant, and in view of the 2nd Defendant's allegation that he signed the transfer document under duress, I find and hold that the Plaintiff has established a prima facie case with chances of success.
For those reasons, I allow the Application dated 2nd December 2014 in the following terms:
(a) An order of injunction be and is hereby issued restraining the Defendants, their agents, assigns or anybody acting on their behest from entering, evicting, trespassing or in any other manner interfering with the Plaintiff's peaceful and utilization of parcel of land number 1705/359 (original number 1705/84/24) pending the hearing of the suit.
(b) The costs of the Application to be in the cause.
Dated and delivered in Malindi this 25th day of September2015.
O. A. Angote
Judge