Charles Cheruiyot Mosonik & another v David Kipkemoi Siele & 4 others [2016] KEELC 456 (KLR)
The bottom line
#A Kericho court froze a disputed land sale because the transfer papers appeared to have been signed after the owner had died.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
The plaintiffs established a prima facie case with a probability of success, warranting an injunction and inhibition
The transfer instrument was purportedly executed on 14 October 2010, but the deceased had died on 2 April 2011... actually died on 2 April 2011 and the leasehold title to Block 1/383 only came into existence on 13 May 2014, making the purported execution date impossible. No written agreement evidenced the alleged exchange. This raised serious questions about the validity of the surrender and transfer documents.
Enforceability of the alleged exchange agreement
No enforceable agreement was shown; the burden on the 1st and 2nd defendants was not discharged
Under Section 3(3) of the Law of Contract Act, land sale agreements must be in writing. The 1st and 2nd defendants asserted an exchange of parcels including Boito properties and a Kshs. 250,000/= top-up but annexed no documentary proof. Since the party asserting the agreement must prove it, the burden was not discharged on this application.
Status quo as to possession
Possession status quo preserved despite the injunction
The court found the plaintiffs may not have fully disclosed matters, noting the property housed businesses and that plaintiffs had allowed defendants to remain in possession while owning the adjacent Block 1/382. The complete picture would emerge at trial, so possession was left undisturbed.
Legal principles established
#- Agreements for the sale of land must be in writing under Section 3(3) of the Law of Contract Act to be enforceable
- He who asserts must prove; the party asserting an exchange or sale agreement bears the burden of proving it
Court orders
#- 1.An order of temporary injunction restraining the 1st and 2nd defendants from selling, charging or entering into any encumbrance or other dealings with Kericho/Municipality Block 1/383 pending hearing and determination of the suit
- 2.An order of inhibition inhibiting registration of any disposition in the register of the land parcel Kericho/Municipality Block 1/383 until conclusion of the case
- 3.Status quo as to possession of Kericho/Municipality Block 1/383 to be maintained pending hearing and determination of the case
- 4.Costs of the application awarded to the plaintiffs
- Jurisdiction invoked
- Order 40 Rules 1(a), (b), 2(1) and (2) of the Civil Procedure Rules; Environment and Land Court jurisdiction over land registered in Kericho
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Cheruiyot Mosonik & another v David Kipkemoi Siele & 4 others [2016] KEELC 456 (KLR)", Case Analysis (2016). Kericho ELC (not stated; suit filed 24 February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/456/eng@2016-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.