[2018] KEELC 4712 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success. The plaintiff provided evidence of her ownership and denied ever selling or transferring the suit property or executing any power of attorney. Her passport showed she had not been in Kenya since 1994, contradicting...
Source-derived case information.
- Citation
- [2018] KEELC 4712 (KLR)
- Parties
- Plaintiff: Stavroula Georgopoulou (formerly Stavroula Rousalis); Defendant: Denacy Investments Limited; Defendant: David Ronald Ngala Adhoch; Defendant: Labh Singh Harman Singh Limited; Defendant: The Chief Land Registrar; Defendant: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 4 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Fraudulent Transfer, Proprietorship Disputes, Interlocutory Injunctions, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stavroula Georgopoulou (formerly Stavroula Rousalis)
Plaintiff
Denacy Investments Limited
Defendant
David Ronald Ngala Adhoch
Defendant
Labh Singh Harman Singh Limited
Defendant
The Chief Land Registrar
Defendant
The Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of interlocutory injunction against the defendants pending trial.
- 2 Whether the transfer of L.R. No. 12715/595 to the 1st defendant was fraudulent or unauthorized.
- 3 Whether the plaintiff executed any power of attorney or sale agreement authorizing the transfer of the suit property.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success. The plaintiff provided evidence of her ownership and denied ever selling or transferring the suit property or executing any power of attorney. Her passport showed she had not been in Kenya since 1994, contradicting the alleged execution of sale and transfer documents. The defendants failed to file any replying affidavits or evidence to rebut the plaintiff's claims. In the absence of any challenge to the plaintiff's evidence and in view of the serious allegations of fraud and forgery, the court held that the plaintiff was entitled to the injunctive orders sought to preserve the suit...
Court Disposition
application allowed
Orders
- The 1st defendant, its agents, or anyone deriving title through it are restrained from alienating, selling, transferring, leasing, charging, or otherwise dealing with L.R. No. 12715/595 pending the hearing and determination of the suit.
- The 1st defendant, its agents, or anyone deriving title through it are restrained from constructing any building or structures on the suit property pending the hearing and determination of the suit.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 4 OF 2016
STAVROULA GEORGOPOULOU
(FORMERLY STAVROULA ROUSALIS)................... PLAINTIFF
VERSUS
DENACY INVESTMENTS LIMITED..................1ST DEFENDANT
DAVID RONALD NGALA ADHOCH.................2ND DEFENDANT
LABH SINGH HARMAN SINGH LIMITED.......3RD DEFENDANT
THE CHIEF LAND REGISTRAR .......................4TH DEFENDANT
THE ATTORNEY GENERAL .............................5TH DEFENDANT
RULING
1. In the Application dated 18th November, 2015, the Plaintiff is seeking for the following orders:
a. That the 1st Defendant by itself or through its servants or agents and/or through anyone deriving title through it be jointly and severally restrained from alienating, selling, transferring, leasing and/or charging or in any other manner whatsoever from having any dealings with all that parcel of land known as Land Reference No. 12715/595, Machakos County (the suit property) pending the hearing and determination of this suit.
b. That the 1st Defendant by itself or through its servants or agents and/or through anyone deriving title through it be jointly and severally restrained from constructing any building or any other structures on the suit property pending the hearing and determination of this suit.
c. That the 4th Defendant be inhibited from registering any dealings of whatsoever nature with regard to the suit property and the other suit property pending the hearing and determination of this suit.
2. The Application is supported by the Affidavit of the Plaintiff who has deponed that by an agreement dated 3rd November, 1992 between herself and one Samuel Muema in respect of land reference L. R. No. 12715/595, Machakos County (the suit land), she purchased the said land for Kshs. 2,000,000.
3. According to the Plaintiff, she entered into another Sale Agreement with one Reuben Mutuku Kiva on 12th November, 1992 and purchased L.R. No. 12715/632 for Kshs. 2,000,000 and was later on registered as the proprietor of the said land.
4. It is the Plaintiff’s deposition that she was subsequently registered as the proprietor of the suit land and that she left Kenya for Greece on 10th December, 1994 and has never returned; that she was issued with provisional certificates of titles for the two suit properties on 23rd October, 1997 and 20th November, 1997 respectively after the losing the original titles and that upon his advocate conducting official searches, he discovered that the genuine entries Nos. 5 and 6 of her titles had been removed and replaced with totally different entries.
5. It is the Plaintiff’s deposition that she has never sold the suit properties as alleged by the Plaintiff in Machakos HCCC No. 60 of 2015 (the 3rd Defendant herein) and that she has never executed a power of Attorney in favour of the 2nd Defendant as indicated in the transfer documents.
6. The Plaintiff also denied ever selling L.R. No. 12715/595 to the 1st Defendant as shown in the Agreement of Sale of 26th November, 2009 and that there is no proof that she ever received the purchase price of Kshs. 20,000,000 from the 1st Defendant.
7. The Plaintiff finally deponed that the signature appearing on the Sale Agreement is not hers; that she was not in Kenya on the date she allegedly signed the Sale Agreements; that she has never signed an agreement before Kivuva advocate and that she has never received any money from Kivuva advocate being the purchase price for the suit land.
8. The Plaintiff also denied ever executing the Transfer document dated 8th May, 2007 in favour of the 3rd Defendant for L.R. No. 12715/595.
9. It is the Plaintiff’s case that the 1st Defendant, who is registered as the proprietor of L.R. No. 12715/595, is in possession of a false and fraudulently obtained title.
10. Although the Defendants herein entered appearance after being served with the Summons to Enter Appearance and the Application, none of the Defendants responded to the Application.
11. The Plaintiff’s advocate filed detailed submissions and authorities in respect to the Application dated 18th November, 2015 which I have considered.
12. The evidence before me shows that the Plaintiff, or someone going by the Plaintiff’s name, purchased L.R No. 12715/595 (the suit land) from one Samuel Muema vide an agreement dated 3rd November, 1992. The land was then transferred to the Plaintiff on 6th January, 1993.
13. It would appear that the original title document that was in possession of the Plaintiff got lost, and vide the Plaintiff’s advocate letter dated 24th December,1996, she applied for a provisional certificate of title in respect of L. R. No. 12715/595, which was issued on 23rd October, 1997.
14. Upon her advocate conducting a search, the Plaintiff has deponed that it was discovered that the land had been transferred to the 1st Defendant on 13th August, 2010 for a sum of Kshs. 20,000,000.
15. The Plaintiff has denied ever transferring the suit land to the 1st Defendant. She deponed that she has never given to the 2nd Defendant or anyone else the Power of Attorney to transact in the suit land and that the title which is now in the name of the 1st Defendant was fraudulently obtained.
16. The Plaintiff has exhibited her passport which shows that since she exited Kenya in the year 1994, she has never been back in Kenya.
17. Although it is purported that the Plaintiff donated to the 2nd Defendant a Power of Attorney on 2nd February, 2007 to execute all documents on her behalf, the advocate who purportedly witnessed the Plaintiff execute the said Power of Attorney did not file any Affidavit in this matter to support that assertion.
18. Considering that the Defendants have not disputed by way of Replying Affidavits the depositions in the Plaintiff’s Affidavit, and in view of the denial by the Plaintiff that she has never sold the suit land, I find that the Plaintiff has established a prima facie case with chances of success.
19. For those reasons, I allow the Application dated 18th November, 2015 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 26TH DAY OF JANUARY, 2018.
O.A. ANGOTE
JUDGE