[2016] KEELC 562 (KLR)
The court found that the Plaintiff, as administrator of the deceased's estate, raised a serious issue of fraud regarding the registration of the suit property in the 1st Defendant's name, particularly as the alleged transfer occurred after the death of the purported transferor. The 1st Defendant did not deny the...
Source-derived case information.
- Citation
- [2016] KEELC 562 (KLR)
- Parties
- Plaintiff: Serah Chele Boit (suing as the Administrator and Legal representative of the estate of the late Samuel Kiplel Boit); Defendant: Miriam Cherop Chumo; Defendant: Ismael Hassan; Defendant: The Land Registrar Coast Registry
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 47 of 2015
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Injunction
- Outcome
- Application allowed; interlocutory injunction granted.
- Judges
- OA Angote
- Legal Topics
- Fraudulent Transfer, Ownership Dispute, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serah Chele Boit (suing as the Administrator and Legal representative of the estate of the late Samuel Kiplel Boit)
Plaintiff
Miriam Cherop Chumo
Defendant
Ismael Hassan
Defendant
The Land Registrar Coast Registry
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the 1st Defendant fraudulently registered the suit property in her name after the death of the alleged transferor.
- 2 Whether the Plaintiff, as administrator of the deceased's estate, is entitled to injunctive relief restraining the Defendants from dealing with the suit property pending determination of the suit.
- 3 Whether the balance of convenience favours the grant of an injunction to preserve the suit property.
Ratio Decidendi
The court found that the Plaintiff, as administrator of the deceased's estate, raised a serious issue of fraud regarding the registration of the suit property in the 1st Defendant's name, particularly as the alleged transfer occurred after the death of the purported transferor. The 1st Defendant did not deny the Plaintiff's possession of the property or her intention to sell it. Given the unresolved allegations of fraud and the risk of alienation of the property, the balance of convenience favoured the Plaintiff. The court therefore granted the interlocutory injunction to preserve the suit property pending determination of the main suit.
Court Disposition
Application allowed; interlocutory injunction granted.
Orders
- The 1st and 2nd Defendants are restrained and prohibited from selling, transferring, alienating, charging, dealing or otherwise interfering with Land Reference No. 2096 CR.14325 pending hearing and determination of the suit.
- The 3rd Defendant is restrained and prohibited from registering any transfer or other interest against Land Reference No. 2096 CR.14325 pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 47 OF 2015
SERAH CHELE BOIT(suing as the Administrator and Legal representative of the estate of
the lateSAMUEL KIPLEL BOIT....................................................................................PLAINTIFF
=VERSUS=
1. MIRIAM CHEROP CHUMO
2. ISMAEL HASSAN
3. THE LAND REGISTRAR COAST REGISTRY......................................................DEFENDANTS
R U L I N G
Introduction:
1. The Application by the Plaintiff dated 31st March, 2015 is seeking for the following orders:-
(a) THAT the 1st and 2nd Respondents either by themselves or through their servants or agents be restrained and prohibited from selling, transferring, alienating, charging, dealing or otherwise interfering with the suit property known as Land Reference No. 2096 CR.14325 pending the hearing and determination of the suit.
(b) THAT the 3rd Respondent be restrained and prohibited from registering any transfer or other interest against the suit property known as Land Reference No.2096 CR.14325 pending the hearing and determination of the suit.
(c) THAT the status quo, being that the Plaintiff/Applicant is and continues to be in possession and enjoy use, control and ownership of the suit property known as Land Reference No.2096 CR.14325, be maintained pending the hearing and determination of this Application.
(d) THAT the 3rd Respondent be ordered to produce for inspection by this Honourable Court the Land Registry file for suit property known as Land Reference NO.2096 CR.14325 at the hearing of the main suit.
(e) THAT the cost of this application be given to the Plaintiff/Applicant.
2. The Application is premised on the ground that the Applicant is the Administrator and legal Representative of the Estate of the late Samuel Kiplel Boit who is the registered proprietor of LR. No. 2096.
3. According to the Applicant, her, together with the deceased who was her husband, built a stone house on the suit property; that the 1st Defendant is purporting to be the owner of the suit property and that the title document that the 1st Defendant is holding is a forgery because by the time it is purported that her late husband sold the land, he had already died.
4. It is the Applicant's case that she has been unable to obtain the official search because the file cannot be traced at the Lands office.
5. In her Replying Affidavit, the 1st Defendant deponed that she is the registered proprietor of the suit property; that she had a long relationship with the deceased and that in January 1986, the deceased transferred the suit property to her as a gift by signing the Transfer on 20th January, 1989 before an advocate.
6. The 1st Defendant deponed that before she could lodged the transfer document for registration, the deceased died in a road accident and that it was not until 8th July, 1997 that she was able to secure money and lodge the transfer document for registration.
7. According to the 1st Defendant, the suit property does not form part of the Estate of the deceased and that the Certificate of Confirmation of grant confirms that.
8. I have considered the submissions that have been filed by all the parties.
9. Although the 1st Defendant is the registered proprietor of the suit property, the Plaintiff's case is that the 1st Defendant had the suit property registered in her favour fraudulently.
10. Indeed, the 1st Defendant has not denied that the Plaintiff is the administrator of the Estate of the late Samuel Kiplep Boit who purportedly transferred the suit property to her as a gift.
11. Considering the serious issue of fraud that has been raised by the Plaintiff viz-a-viz how the suit property was registered in favour of the 1st Defendant way after her husband had died, it is prudent and equitable to restrain the 1st Defendant from selling or alienating the suit property pending the hearing and determination of the suit.
12. Indeed, the 1st Defendant has not denied the allegation by the Plaintiff that she has the intention of selling the suit property.
13. The 1st Defendant has also not denied that it is the Plaintiff who is in possession of the suit property. Consequently, the balance of convenience tilts in favour of the Plaintiff.
14. It is for the reasons I have given above that I allow the Application dated 31st March, 2015 in terms of prayer numbers 5, 6 and 9.
Dated, signed and delivered in Malindi this 16thday of September, 2016.
O. A. Angote
Judge