[2018] KEELC 2762 (KLR)
The court found that the plaintiff had proved his case on a balance of probabilities by producing sale agreements, receipts, and deed plans evidencing the purchase of the suit plots and payment of the full purchase price. The defendant, having failed to enter appearance or file a defence, did not controvert the...
Source-derived case information.
- Citation
- [2018] KEELC 2762 (KLR)
- Parties
- Plaintiff: Mohamed Hassan Ali; Defendant: Joseph Kariuki Kibaara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 29 of 2014
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- LC Komingoi
- Legal Topics
- Specific Performance, Injunctions, Sale of Land, Title Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Hassan Ali
Plaintiff
Joseph Kariuki Kibaara
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a permanent injunction restraining the defendant from dealing with the suit plots otherwise than transferring them to the plaintiff.
- 2 Whether the plaintiff is entitled to a mandatory injunction compelling the defendant to complete the sale and transfer the title deeds to the plaintiff.
- 3 Whether the plaintiff has proved his case on a balance of probabilities.
Ratio Decidendi
The court found that the plaintiff had proved his case on a balance of probabilities by producing sale agreements, receipts, and deed plans evidencing the purchase of the suit plots and payment of the full purchase price. The defendant, having failed to enter appearance or file a defence, did not controvert the plaintiff's evidence. The court held that the plaintiff was entitled to a permanent injunction restraining the defendant from dealing with the suit plots otherwise than transferring them to the plaintiff, and a mandatory injunction compelling the defendant to complete the sale and transfer the title deeds to the plaintiff. The court also awarded costs to the plaintiff.
Court Disposition
judgment for the plaintiff
Orders
- A permanent injunction is issued restraining the defendant, his agents or servants from selling, transferring or in any way dealing with Plot Numbers MN/11/10884 and MN/11/10885 otherwise than transferring to the plaintiff.
- A mandatory injunction is issued directing the defendant to complete the sale and transfer the title deeds for Plot Numbers MN/11/10884 and MN/11/10885 (Original 199/11/MN) to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC SUIT NO 29 OF 2014.
MOHAMED HASSAN ALI...................PLAINTIFF
VERSUS
JOSEPH KARIUKI KIBAARA.........DEFENDANT
JUDGMENT
1. The Plaintiff has filed this suit against the Defendant seeking;
a) A permanent injunction order restraining the Defendant either by himself, agent or servant from selling, transferring or in any form dealing with Plot Numbers MN/11/10884 and MN/11/10885 otherwise than transferring to the Plaintiff.
b) A mandatory injunction order directing the Defendant to cause completion of the sale of said Plots Number MN/11/10884 and MN/11/10885 (Original 199/11/MN) by processing the Title Deeds and transferring the same to the Plaintiff.
c) Costs of this suit.
d) Any other relief this Honourable Court may deem fit to offer.
2. The Defendant was duly served with copies of plaint and summons to enter appearance neglected to enter appearance and/or file defence within the stipulated period.
The Plaintiff then set down the suit hearing.
3. It is the Plaintiff’s case that he bought the two plots from the Defendant in 2007. He produced copies of the sale agreements dated 23rd July, 2007 as exhibits P1 and P2. A copy of the receipt dated 23rd July, 2007 Exhibits P3. A copy of the deed plan for Plot No 10884/11/MN as Exhibit P4. A copy of the deed plan for Plot No. 10885/11/MN as Exhibits P5.
4. He said he paid a total of Kshs.450,000/= for the two plots. He further told the court that the Defendant has refused to facilitate him so that he can be issued with title deeds. Without being issued with title deeds he will not be able to develop the said plots.
5. I have considered the Plaintiff’s case in totality. I find that the same is uncontroverted. I find that the Plaintiff has proved his case on a balance of probability as against the Defendant. I enter judgment in his favour as follows;
a) That a permanent injunction be and is hereby issued restraining the Defendant either by himself and or agents or servants form selling, transferring or in any way dealing with Plot Numbers MN/11/10884 and MN/11/10885 otherwise than transferring to the Plaintiff.
b) That a mandatory injunction be and is hereby issued directing the Defendant to cause completion of the sale of the said MN/11/108854 and MN/11/10885 (Original 199/11/MN) by processing the title deeds and transferring the same to the Plaintiff.
c) Costs of the suit.
It is ordered.
Dated, Signed and Delivered at Mombasa on the 18th day of April 2018.
______________
L. KOMINGOI
JUDGE
18/4/2018.