[2004] KEHC 2170 (KLR)
The court found that the plaintiff had established a strong prima facie case with regard to her allegations of fraud in the transfer of the suit property. The court emphasized that, in cases involving fraud and land, damages are not an adequate remedy because if fraud is ultimately proved, the title would revert and...
Source-derived case information.
- Citation
- [2004] KEHC 2170 (KLR)
- Parties
- Plaintiff: Rosemany Kinanu Mugambi; Defendant: Obutu Osoro t/a Chartered Unilever; Defendant: Benard Otoyo Oduor; Defendant: Lydia Wanjiru; Defendant: Registrar of Titles (Msa District); Defendant: Jame Waweru Gichuhi; Defendant: Regina Wachuka Waweru
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 185 of 1999
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- Application allowed; interlocutory injunction granted.
- Legal Topics
- Injunctive Relief, Fraud in Land Transactions, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemany Kinanu Mugambi
Plaintiff
Obutu Osoro t/a Chartered Unilever
Defendant
Benard Otoyo Oduor
Defendant
Lydia Wanjiru
Defendant
Registrar of Titles (Msa District)
Defendant
Jame Waweru Gichuhi
Defendant
Regina Wachuka Waweru
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the 5th and 6th defendants from dealing with Plot No. LR No.MN/1/6642 pending determination of the suit.
- 2 Whether allegations of fraud in the transfer of the suit property warrant the grant of injunctive relief.
Ratio Decidendi
The court found that the plaintiff had established a strong prima facie case with regard to her allegations of fraud in the transfer of the suit property. The court emphasized that, in cases involving fraud and land, damages are not an adequate remedy because if fraud is ultimately proved, the title would revert and there would be no valid title left with the fraudsters to transfer. The court also noted that the 5th and 6th defendants had proceeded to register themselves as owners in violation of existing court orders and a consent agreement restraining dealings with the property. The court held that there was no justification for disregarding these orders and agreements. Consequently,...
Court Disposition
Application allowed; interlocutory injunction granted.
Orders
- The 5th and 6th defendants are restrained from dealing with Plot No. LR No.MN/1/6642, including building, erecting structures, or any construction thereon, pending the final determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 185 OF 1999
ROSEMANY KINANU MUGAMBI………………………………………PLAINTIFF
=V E R S U S=
1. OBUTU OSORO t/a CHARTERED UNILEVER……1ST DEFENDANT
2. BENARD OTOYO ODUOR…………………………….2ND DEFENDANT
3. LYDIA WANJIRU………………………………………..3RD DEFENDANT
4. REGISTRAR OF TITLES (MSA DISTRICT)…………4TH DEFENDANT
5. JAME WAWERU GICHUHI……………………………5TH DEFENDANT
6. REGINA WACHUKA WAWERU………………………..6TH DEFENDANT
R U L I N G
Application dated 11/12/03 was filed by the Plaintiff on the same date. The application came up for hearing on 5/3/2004.
The prayer for argument on that day was only prayer (c) seeking to restrain the 5th and 6th Defendants from dealing with Plot No. LR No.MN/1/6642 from building thereon or erecting any structures or any constructions pending the final determination of this suit.
The grounds are set out on the body of the application and supporting affidavit.
From the material before the court the Plaintiff/Applicant relies heavily on allegations of fraud. That she purchased the disputed land property and by fraudulent acts the title passed to other persons (Defendants) on 26th April, 1999 the Plaintiff obtained a restraining order from this court (Justice Hayanga) restraining the first 4 Defendants from dealing with the property.
Again on 3. 5.2000 a consent of the parties were recorded restraining the Defendants from interfering with the disputed property. However, on 8/12/03 the 5th and 6th Defendant were registered as owners of the said disputed plot.
I have perused the replying affidavit of J.W. Gichuhi and the defence filed by 5th and 6th Defendants. I find that the Plaintiff has a strong case which should go for trial.
Where issues of fraud are concerned no amount of damages can be adequate compensation for leasing the title to land in this country. If fraud is proved there would be no title left to the fraudsters to sell. By purporting to sell what is not theirs they are reaping where they have not planted. The court cannot assist wrong doers.
In view of the fact that the court had restrained sale and also parties by consent had agreed not to deal with the property pending hearing and determination of the suit.
There can be no excuse for them abandoning the court order and their own agreement and proceeding to sell and transfer property to 5th and 6th Defendants.
The application is allowed and orders granted as prayed under para. C of the Chamber Summons.
Costs shall be in the cause.
Dated this 4th day of June, 2004.
JOYCE KHAMINWA
J U D G E
Mr. Were – for 5th & 6th Defendants:-
I apply for certified copies.
COURT:- Let the same be supplied upon payment of copying charges.
JOYCE KHAMINWA, J.