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ELCPartially AllowedELC Civil Suit No. 273 of 2010· [2017] KEELC 909 (KLR)

Mohamed Ashif Kassam Abdulgani Tobaria v Mahbub Kassam Abdulgani Tobaria & another [2017] KEELC 909 (KLR)

Environment and Land Court
9 November 2017
KBK. BOR
1,560 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued his brother, the 1st Defendant, and the 1st Defendant's wife, the 2nd Defendant, over L.R. No. 209/4300/78 I.R.9496, which he and the 1st Defendant purchased in 1995 as tenants in common. He sought a permanent injunction against dealings with the property, an independent valuation to ascertain each owner's share, an order that Magnate Ventures Limited pay each party equal annual rent for the advertising mast on the property, an account of all rent collected from December 2005, and a declaration that the Defendants pay half the market rent of the house they occupied. The Defendants had occupied the property since 1995, rented out the guest wing, and collected mast rent without sharing it. The charge securing Kshs 3.6 million was transferred to Motifamy Investment Limited and then to the 2nd Defendant; the Plaintiff alleged this was done without his knowledge and that he paid Kshs 1.9 million to redeem his share. The 2nd Defendant claimed a beneficial interest as current chargee but produced no evidence of the Kshs 1 million she allegedly paid Motifamy Investments, her cousin's company. The court preferred the Plaintiff's unchallenged evidence, found the suit proved on a balance of probabilities, and granted prayers (a), (b), (d), (e) and (f) of the Amended Plaint, directing release of the Magnate Ventures monies held in the joint account to the Plaintiff, an account of rents, and deduction of rates and outgoings paid by the Defendants. Judgment was delivered by K. Bor, J, on 9 November 2017.

Key legal issues

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01

Ownership of the Suit Property as tenants in common

Holding

Ownership by the Plaintiff and 1st Defendant as tenants in common was not in dispute, so the Plaintiff's half share stands.

Reasoning

The court noted it was undisputed that the parties jointly purchased the property in 1995 as tenants in common. The 1st Defendant's claim that the property became his wife's upon redemption of the charge failed because the 2nd Defendant produced no proof of payment to Motifamy Investment Limited, and the alleged redemption consideration of Kshs 1 million fell far short of the Kshs 3.6 million debt secured by the charge.

p. 2
02

Transfer of the charge without the Plaintiff's knowledge

Holding

The transfer of the charge to Motifamy Investment Limited and then to the 2nd Defendant did not defeat the Plaintiff's interest; the 2nd Defendant's claimed beneficial interest failed for lack of proof of payment.

Reasoning

The court observed that the letter consenting to the transfer of the charge was signed by the 1st Defendant alone, and the 2nd Defendant admitted it was not her duty to inform the Plaintiff. She produced no evidence of the Kshs 1 million she claimed to have paid Motifamy Investments, her cousin's company. The court preferred the Plaintiff's unchallenged evidence that he paid Kshs 1.9 million towards the loan.

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03

Accounting for rent and occupation

Holding

The Defendants were liable to account for rent from the guest wing and the advertising mast, with the Magnate Ventures monies in the joint account to be released to the Plaintiff and taken into account in the accounting; rates and outgoings paid by the Defendants to be deducted.

Reasoning

It was admitted that the Defendants resided on the property from 1995 and let the guest wing without sharing rent, and that mast rent was only banked into a joint account after court orders. The court held the Defendants must account from December 2005, credit the Plaintiff's half share, and deduct the Defendants' lawful outgoings in ascertaining the sum payable.

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04

Standard of proof

Holding

The Plaintiff proved his case on a balance of probabilities, the applicable civil standard.

Reasoning

The court weighed the pleadings, evidence and submissions and found the Plaintiff's testimony unchallenged on the payment of his share of the loan. The Defendants' contrary account—that part of the money came from sale of a company truck—was rejected, and the court preferred the Plaintiff's evidence over that of the 1st Defendant.

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Legal principles established

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  • A co-owner who has been excluded from rent collected from jointly owned property is entitled to an account from the co-owner who collected it.
  • A party alleging payment (such as redemption of a charge) bears the evidential burden of proving it; unproven allegations of payment carry no weight.

Court orders

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  1. 1.Prayers (a), (b), (d), (e) and (f) of the Amended Plaint dated 29.11.2010 granted
  2. 2.Permanent injunction restraining the Defendants from selling, transferring, charging, leasing out, disposing of or interfering with the Plaintiff's interest in L.R. No. 209/4300/78 I.R.9496 (prayer (a))
  3. 3.Valuation of the Suit Property by an independent valuer to ascertain each registered owner's share (prayer (b))
  4. 4.Accounting by the Defendants for all rent collected from the Suit Property from December 2005, including rent from the guest wing and from Magnate Ventures Limited
  5. 5.Release to the Plaintiff of the monies paid by Magnate Ventures Limited held in the joint advocates' account, subject to deduction of rates and outgoings paid by the Defendants
  6. 6.Declaration that the Defendants pay pro rata half of the market rent for the residential house they have occupied since December 2005
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (original civil suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohamed Ashif Kassam Abdulgani Tobaria v Mahbub Kassam Abdulgani Tobaria & another [2017] KEELC 909 (KLR)", Case Analysis (2017). ELC Civil Suit No. 273 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/909/eng@2017-11-09

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