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ELCPartially AllowedNot stated in the judgment· [2013] KEELC 55 (KLR)

Salim Soud Ali Bin Salim v Mjad Investments Limited & 4 others [2013] KEELC 55 (KLR)

Environment and Land Court
18 October 2013
SMS. N. Mukunya
1,572 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Mombasa's Environment and Land Court blocked a buyer from dealing with three contested Mombasa properties, ruling that serious fraud questions meant the land had to be preserved until trial.

What this practically means

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Executive summary

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The plaintiff, Salim Soud Ali, administrator of the estate of Sir Ali Bin Salim El-Busaidi, moved the court for a temporary injunction restraining the 1st to 4th defendants from selling, alienating, transferring, charging, wasting or dealing with three Mombasa properties (Block/XXI/498, 151 and 152), plus orders for rectification of the registers and deposit of rents in court pending the hearing of the suit. He asserted he held the titles, had never sold or transferred them, and had not received the alleged Kshs. 200 million purchase price, alleging fraud and an impostor administrator. The 1st defendant, through its Finance Manager, maintained it purchased the properties for valuable consideration from the administrator, paid the price, and followed due conveyancing process. The plaintiff replied that the purported vendor was actually Salim Abdalla Awadhi, charged in Mombasa SRM Criminal Case No. 190 of 2013 with nine counts of forgery and false pretences, and that the 1st defendant's officers were witnesses in that case. The Land Registrar confirmed a restriction had been placed on the titles after fraudulent dealing was discovered. The court found serious issues as to how the properties changed hands, observed the purchaser's questionable disregard of the 61-beneficiary distribution order and the imminent expiry of the leases, and held the applicant satisfied the Giella v Cassman Brown criteria. It granted an injunction preserving the properties until final determination of the suit, with costs of the application in the suit.

Key legal issues

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01

Whether the applicant satisfied the Giella v Cassman Brown criteria for an interlocutory injunction

Holding

Yes; the applicant established a prima facie case with a probability of success, likely irreparable injury, and the balance of convenience in his favour, warranting an injunction preserving the suit properties

Reasoning

The court found serious issues as to how the three suit properties changed hands. The purported vendor/administrator was charged with nine counts of forgery and false pretences in respect of the suit premises; officers of the 1st defendant were cited as prosecution witnesses; the Land Registrar admitted the real administrator was identified by an advocate's secretary and imposed a restriction on the titles. The purchaser's payment of Kshs. 200 million despite a distribution order showing 61 beneficiaries and expiring leases troubled the court. These matters, unresolved at the interlocutory stage, favoured preservation of the properties.

p. 3
02

Whether the 1st defendant's acquisition of the suit properties was above board

Holding

Doubtful; the circumstances of the transaction raised serious questions of fraud to be tried at the hearing

Reasoning

The court noted the purchaser and its lawyers apparently kept a blind eye to the order of distribution for 61 beneficiaries, paid a staggering price for properties whose leases were months from expiry, and the Land Registrar restricted dealings upon discovering fraudulent dealing. These unresolved issues could not be determined at the interlocutory stage but supported the grant of an injunction pending trial.

p. 3

Legal principles established

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  • The grant of a temporary injunction requires establishment of a prima facie case with a probability of success, irreparable injury which damages cannot adequately compensate, and if in doubt the court decides on the balance of convenience

Court orders

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  1. 1.A permanent injunction restraining the 1st defendant, its servants, agents or anyone acting under or instructed by it, from disposing of, selling, alienating, transferring, charging, collecting rent, constructing, wasting or in any manner dealing with or interfering with MOMBASA/BLOCK/XXI/498, MOMBASA/BLOCK/XXI/151 and MOMBASA/BLOCK XXI/152 until final determination of the suit
  2. 2.Costs of the application to be in the suit
Jurisdiction invoked
Original civil jurisdiction over land disputes (notice of motion for temporary injunction); no specific provision stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Salim Soud Ali Bin Salim v Mjad Investments Limited & 4 others [2013] KEELC 55 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/55/eng@2013-10-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.