elizabeth solomoni mbwilo vs emmanuel pius msekwa 2021 tzhclandd 783 29 september 2021

elizabeth solomoni mbwilo vs emmanuel pius msekwa 2021 tzhclandd 783 29 september 2021

The Plaintiff failed to prove on a balance of probabilities that the transfer of the property and subsequent mortgage were fraudulent. The evidence established that the 1st Defendant legally acquired and transferred the property, the mortgage and auction sale were lawfully executed, and the 5th Defendant was a bona fide purchaser. The Plaintiff had no locus standi and did not discharge the burden of proof required for fraud.

Citation
elizabeth solomoni mbwilo vs emmanuel pius msekwa 2021 tzhclandd 783 29 september 2021
Parties
Plaintiff: Elizabeth Solomoni Mbwilo; 1st Defendant: Emmanuel Pius Msekwa; 2nd Defendant: Kefad Company Limited; 3rd Defendant: Kenya Commercial Bank PLC; 4th Defendant: Mem Auction Mart & General Brokers Ltd; 5th Defendant: Said Mahsen Said
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
29 September 2021
Procedural Posture
Land Case / Judgment
Outcome
Suit dismissed
Legal Topics
Fraudulent Transfer of Property, Mortgage Enforcement, Bona Fide Purchaser Protection, Burden of Proof, Auction Sale Validity
Source Language
English
Land Law Contract Law Civil Procedure Fraudulent Transfer of Property Mortgage Enforcement Bona Fide Purchaser Protection Burden of Proof Auction Sale Validity

Case Brief

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Parties

Elizabeth Solomoni Mbwilo

Plaintiff

Emmanuel Pius Msekwa

1st Defendant

Kefad Company Limited

2nd Defendant

Kenya Commercial Bank PLC

3rd Defendant

Mem Auction Mart & General Brokers Ltd

4th Defendant

Said Mahsen Said

5th Defendant

Procedural Posture

Land Case / Judgment

Legal Issues

  1. 1 Whether the 1st Defendant legally acquired and transferred the Certificate of Title No. 186159/2 Plot No. 290 Regent Estate Dar es Salaam from Plaintiff to himself
  2. 2 Whether the mortgage created by the 1st Defendant in favour of the 3rd Defendant to secure the 2nd Defendant in respect of the property was fraudulently procured
  3. 3 Whether the sale of the mortgaged property was lawful

Ratio Decidendi

The Plaintiff failed to prove on a balance of probabilities that the transfer of the property and subsequent mortgage were fraudulent. The evidence established that the 1st Defendant legally acquired and transferred the property, the mortgage and auction sale were lawfully executed, and the 5th Defendant was a bona fide purchaser. The Plaintiff had no locus standi and did not discharge the burden of proof required for fraud.

Court Disposition

Suit dismissed