[2015] KEHC 1563 (KLR)
The court found that the plaintiff had provided sufficient evidence to establish a prima facie case that the suit property was originally owned by the deceased and that the defendant may have obtained registration irregularly or fraudulently. In the absence of any explanation or opposition from the defendant, and...
Source-derived case information.
- Citation
- [2015] KEHC 1563 (KLR)
- Parties
- Plaintiff: Nashilu Enole Sopia; Defendant: Swakei Sopia
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 234 of 2014
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Application for injunction allowed; orders granted as prayed.
- Judges
- MA Silau
- Legal Topics
- Fraudulent Registration, Injunctive Relief, Succession and Administration, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nashilu Enole Sopia
Plaintiff
Swakei Sopia
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction against the defendant.
- 2 Whether the defendant's registration as proprietor of the suit land was obtained fraudulently or irregularly.
- 3 Whether the balance of convenience favours preservation of the suit property pending determination of the suit.
Ratio Decidendi
The court found that the plaintiff had provided sufficient evidence to establish a prima facie case that the suit property was originally owned by the deceased and that the defendant may have obtained registration irregularly or fraudulently. In the absence of any explanation or opposition from the defendant, and given the risk of further dealings with the property to the detriment of other beneficiaries, the balance of convenience favoured granting an injunction to preserve the property. The court therefore allowed the application, barring the defendant from dealing with the property and issuing an order of inhibition pending the hearing and determination of the suit.
Court Disposition
Application for injunction allowed; orders granted as prayed.
Orders
- The defendant is barred from selling, charging, further leasing, or in any way dealing with the property Narok/Cis-Mara/Olkinyei/1210 pending hearing and determination of this suit.
- An order of inhibition is issued, barring the registration of any disposition in the register of the land parcel Narok/Cis-Mara/Olkinyei/1210 pending hearing and determination of this suit.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIROMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 234 OF 2014
NASHILU ENOLE SOPIA ………………..…………PLAITNIFF
VERSUS
SWAKEI SOPIA …………………..………………DEFENDANT
RULING
(Application for injunction; application unopposed; application allowed)
1. This suit was commenced by way of plaint filed on 8 August 2014. Together with the plaint, the plaintiff filed an application for injunction, which is the subject of this ruling. So far, the defendant has not entered appearance and has neither filed defence nor any response to the subject application.
2. The plaintiff is the widow of one Ranka Ole Sopia (deceased) and she holds a grant of letters of administration ad litem for the estate of the deceased. Ole Sopia died in the year 1994. It is averred that Ole Sopia was the legal allottee of the land parcel Narok/Cis-Mara/Olkinyei/1210 (the suit land) which is land measuring approximately 170 acres. The defendant is one of the three sons of Ole Sopia. The plaintiff's case is that the defendant fraudulently caused the suit land to be registered into his names. Among the particulars of fraud is that the defendant registered himself as proprietor without considering the interests and rights of the other members of the family. In the suit, the plaintiff wants orders to have the defendant's title nullified.
3. To the supporting affidavit, the plaintiff annexed a copy of letters of administration ad litem; Certificate of Death for the late Ole Sopia; a copy of what was said to be a register of Olkinyei Group Ranch; transfer of the suit property from Olkinyei Group Ranch to the deceased; and a search certificate showing that the defendant became registered on 10 November 2011 as proprietor of the suit property. The property is leased to an entity called Porini Limited.
4. I have considered the application. The same is not opposed. On my part I do not see why I should not allow it. I think the plaintiff has tabled some evidence that the suit property was owned by the deceased. It is not clear to me how the defendant obtained registration and without an explanation from him, I am of the view that a prima facie case that the defendant may have obtained registration of the suit property irregularly, has been laid out. The balance of convenience also tilts in favour of preserving the property.
5. I therefore allow the application and make the following orders :-
(i) The defendant is hereby barred from selling, charging, further leasing, or in any way dealing with the property Narok/Cis-Mara/ Olkinyei/1210 pending hearing and determination of this suit.
(ii) That an order of inhibition is hereby issued, barring the registration of any disposition in the register of the land parcel Narok/Cis-Mara/Olkinyei/1210 pending hearing and determination of this suit.
(iii) Costs shall be in the cause.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 8TH day of October 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In presence of :-
Ms Nchoe holding brief for Ms Muigai for plaintiff/applicant
Defendant: absent
Court Assistant : Janet
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU