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ELCAllowedNot stated in the judgment as provided· [2016] KEELC 562 (KLR)

Serah Chele Boit (suing as the administrator and legal representative of the estate of the late Samuel Kiplel Boit v Miriam Cherop Chumo & 2 others [2016] KEELC 562 (KLR)

Environment and Land Court
16 September 2016
OAO. A. Angote
684 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked the sale of contested land because a dead man apparently signed the transfer after he died.

What this practically means

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Executive summary

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This was an interlocutory application by the Plaintiff, dated 31st March 2015, seeking to restrain the 1st and 2nd Respondents from selling, transferring, alienating or dealing with the suit property LR No. 2096 CR.14325 pending the hearing and determination of the suit, to restrain the 3rd Respondent from registering any transfer or interest against the property, to maintain the status quo, and to compel the 3rd Respondent to produce the Land Registry file for inspection. The Plaintiff, administrator of the estate of Samuel Kiplel Boit (the registered proprietor), alleged that the 1st Defendant's title was a forgery because the purported sale or gift by the deceased occurred after his death, and that the registry file could not be traced. The 1st Defendant, the registered proprietor, deponed that the deceased transferred the property to her as a gift, signing the transfer on 20th January 1989 before an advocate, and that she lodged it for registration only on 8th July 1997 after securing money; she maintained the property did not form part of the estate per the confirmed grant. Justice O. A. Angote held that despite the 1st Defendant's registration, the un-rebutted allegations of fraud, her un-denied intention to sell, and the Plaintiff's un-denied possession tilted the balance of convenience in favour of the Plaintiff. The court allowed the application in terms of prayers 5, 6 and 9 on 16th September 2016, restraining alienation pending trial.

Key legal issues

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01

Entitlement to interlocutory injunction over suit property amid allegations of fraud

Holding

The court granted the injunction because a serious issue of fraud was raised, the Plaintiff was in possession, and the 1st Defendant did not deny an intention to sell

Reasoning

Although the 1st Defendant was the registered proprietor, the Plaintiff alleged the transfer of the deceased's land was fraudulent since it occurred after his death. The 1st Defendant did not deny the allegations of an intention to sell or that the Plaintiff was in possession. The court found the balance of convenience favoured the Plaintiff and held it prudent and equitable to restrain alienation pending full determination.

p. 2

Legal principles established

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  • Where a serious issue of fraud is raised regarding registration of land, it is prudent and equitable to restrain alienation pending trial

Court orders

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  1. 1.Application dated 31st March 2015 allowed in terms of prayer numbers 5, 6 and 9, restraining the 1st and 2nd Defendants from selling, transferring or alienating the suit property pending the hearing and determination of the suit
Jurisdiction invoked
Original civil jurisdiction over land disputes (injunctive relief pending hearing of the suit)

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, "Serah Chele Boit (suing as the administrator and legal representative of the estate of the late Samuel Kiplel Boit v Miriam Cherop Chumo & 2 others [2016] KEELC 562 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/562/eng@2016-09-16

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