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ELCAllowedNot stated in the judgment· [2016] KEELC 449 (KLR)

Jacinta Wanjiru Mwenga v Samwel Theuri & 3 others [2016] KEELC 449 (KLR)

Environment and Land Court
21 September 2016
MSMunyao Sila
616 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court froze the sale of land allegedly fraudulently transferred after a title was left as loan security, because the defendant offered no rebuttal.

What this practically means

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Executive summary

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This was an interlocutory application in a suit filed by way of plaint on 4 March 2016 before the Environment and Land Court at Nakuru. The plaintiff claimed to be the legitimate owner of land parcel Miti Mingi/Mbaruk Block 5/633 (Kianjoya). She pleaded that in 2012 she borrowed Kshs. 70,000 from the 1st defendant at 30% interest and deposited her title deed as a sign of good faith. Falling sick, she could not repay on time and the parties mutually agreed to extend time. In 2015, the 2nd defendant (Loise Wangare Ratemo) entered the premises claiming to have purchased the land from the 1st defendant, and upon investigation the plaintiff discovered the property had been transferred to the 1st defendant. She pleaded she never executed any instrument of transfer nor appeared before any Land Control Board, alleging fraud. She sought a declaration of ownership and cancellation of the 1st defendant's title, and by the application, an order restraining the 1st defendant from dealing with, disposing of, transferring, charging or alienating the suit property pending trial. The court noted the existence of a related suit, Nakuru CMCC No. 2 of 2016, in which the 2nd defendant sought specific performance of a sale agreement with the 1st defendant. The 1st defendant filed nothing in opposition. Holding that a prima facie case had been made out and that the application sought only preservation of the title, the court allowed it, restraining the 1st defendant from selling, charging, leasing or otherwise dealing with the land and issuing an inhibition against registration of any disposition, both pending hearing and determination of the suit. Costs were awarded to the plaintiff against the 1st defendant.

Key legal issues

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01

Whether an interlocutory preservation and inhibition order should issue where the defendant does not oppose the application

Holding

Yes; the plaintiff established a prima facie case, and since the application only sought preservation of the title, it was allowed with both a restraining order and an inhibition order.

Reasoning

The plaintiff pleaded that she had deposited her title with the 1st defendant for a friendly loan of Kshs. 70,000 with 30% interest, and that the land was fraudulently transferred to the 1st defendant without her executing any instrument of transfer or appearing before the Land Control Board. The 1st defendant filed nothing to rebut these allegations. The court found a prima facie case made out and, noting the application sought only preservation of the title, allowed it, issuing a restraint on dealings and an inhibition on registration of any disposition pending trial.

p. 1

Legal principles established

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  • Where allegations of fraudulent transfer go unrebutted and the plaintiff establishes a prima facie case, the court will grant orders preserving the title pending determination of the suit

Court orders

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  1. 1.The 1st defendant restrained from selling, charging, leasing or in any other way dealing with land parcel Miti Mingi/Mbaruk Block 5/633 (Kianjoya) pending hearing and determination of the suit
  2. 2.An order of inhibition inhibiting the registration of any disposition in the register of the said land pending hearing and determination of the suit
  3. 3.Costs of the application to be shouldered by the 1st defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited in the judgment excerpt)

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, "Jacinta Wanjiru Mwenga v Samwel Theuri & 3 others [2016] KEELC 449 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/449/eng@2016-09-21

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