[2015] KEHC 7906 (KLR)

[2015] KEHC 7906 (KLR)

The court found that while the deceased was the original allotee of the land and the plaintiffs were his legal representatives, the deceased defaulted on the loan secured by the 2nd defendant. The purported sale to the 1st defendant was not supported by a written agreement as required by section 3(3) of the Law of...

Source-derived case information.

Citation
[2015] KEHC 7906 (KLR)
Parties
Plaintiff: Trufosa Cheredi Mudembei; Plaintiff: Nevin Egesa Jedevera; Defendant: John K. Malembi; Defendant: The Settlement Fund Trustees
Court
High Court
Court Station
High Court at Eldoret
Jurisdiction
Kenya
Judgment Date
17 November 2015
Case Number
Civil Suit 248 of 2000
Procedural Posture
Civil Suit / Judgment
Outcome
Plaintiffs partially succeeded against the 1st defendant; suit against 2nd defendant dismissed.
Legal Topics
Fraudulent Transfer, Land Allocation, Title Registration, Succession and Estates, Loan Default
Source Language
english
Land and Property Civil Procedure Fraudulent Transfer Land Allocation Title Registration Succession and Estates Loan Default

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Parties

Trufosa Cheredi Mudembei

Plaintiff

Nevin Egesa Jedevera

Plaintiff

John K. Malembi

Defendant

The Settlement Fund Trustees

Defendant

Procedural Posture

Civil Suit / Judgment

Legal Issues

  1. 1 Whether the plaintiffs are the legal representatives of the deceased.
  2. 2 Whether the deceased was allocated the land by the 2nd defendant.
  3. 3 Whether the 2nd defendant had a charge over the land.

Ratio Decidendi

The court found that while the deceased was the original allotee of the land and the plaintiffs were his legal representatives, the deceased defaulted on the loan secured by the 2nd defendant. The purported sale to the 1st defendant was not supported by a written agreement as required by section 3(3) of the Law of Contract Act, rendering the transaction void and unenforceable. The transfer instrument was dated after the deceased's death, and the evidence regarding the execution of the transfer and payment of consideration was unsatisfactory. The plaintiffs failed to prove fraud to the required standard, but the 1st defendant's title was nonetheless void for want of a valid contract. The...

Court Disposition

Plaintiffs partially succeeded against the 1st defendant; suit against 2nd defendant dismissed.

Orders

  • Suit against the 2nd defendant dismissed with no order as to costs.
  • Transfer of Kakamega/Mabusi/14 by the 2nd defendant to the 1st defendant is null and void and is hereby cancelled.