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ELCPartially Allowed· [2017] KEELC 1300 (KLR)

Serve In Love Africa (Sila) Trust v Abraham Kiptarus Kiptoo,Patrick Kipkogei Kibet & David Kipsang Kipyego (Environment & Land Case 21 of 2017) [2017] KEELC 1300 (KLR)

Environment and Land Court
18 October 2017
2,031 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court froze a disputed land sale and bank accounts, ruling a trust's rival-faction trusteeship dispute needed preserving until full trial.

What this practically means

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Executive summary

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Serve in Love Africa (SILA) Trust, through its claimed trustees (David Chemworem, Professor Ambrose Kiprop, Moses Kipkulei, Samson Kibii and Erick Kiptum Teimuge), sued Abraham Kiptarus Kiptoo, Patrick Kipkogei Kibet and David Kipsang Kipyego, alleging that the 1st and 3rd defendants ceased to be trustees of the trust on 5.5.2015 yet, on 19.1.2017, fraudulently sold the trust's land, Kipsinende/Kipsinende Block 3 (Mosop "A") 61, to a third party, Albert Kipchirchir Boss. The plaintiff sought declarations that the 1st and 3rd defendants lack capacity to act for the trust, that the sale agreement is null and void ab initio, and interim injunction and account-freezing orders. The defendants, claiming to be the founding and true trustees, alleged the plaintiff's trustees were fake and that their appointment involved falsified records. Two rival factions thus claimed trusteeship. The court, applying the Giella principles for temporary injunctions, found the plaintiff had demonstrated a prima facie case, since the Lands Office received an application for recording new trustees (though signed by only one trustee and unsigned by the Registrar); that irreparable harm would result if the sale completed, as land cannot be adequately compensated in damages; and that the balance of convenience favoured maintaining the property in SILA's name pending trial. The plaintiff's application dated 24.1.2017 was allowed in terms restraining all parties from dealing with the suit land and freezing the bank accounts holding the sale proceeds. The defendants' applications dated 24.1.2017 and 15.2.2017 were disallowed, with costs of all applications in the cause.

Key legal issues

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01

Whether the plaintiff established a prima facie case with probability of success

Holding

Yes - the Lands Office received an application for recording of a Certificate of Appointment of new trustees signed by one of the remaining trustees, indicating a likelihood of success

Reasoning

The court found the suit property is registered in the name of SILA Trust and that there are two rival factions claiming trusteeship. The application for recording new trustees was signed only by Mr. Kibet and was not signed by the Registrar as required by law. Nonetheless, the court found that the receipt of the application by the Lands Office demonstrated a likelihood that the plaintiff would succeed in establishing the appointment of the new trustees.

p. 3
02

Whether irreparable harm would be suffered absent an injunction

Holding

Yes - if the sale were allowed to complete, the land would be put out of reach of the plaintiff

Reasoning

The court reasoned that the subject matter is land registered in the name of SILA. Land, once sold and transferred to third parties, cannot be adequately compensated in damages, so completion of the sale would cause irreparable harm to the plaintiff trust.

p. 3
03

Where the balance of convenience lies

Holding

It tilts towards maintaining the property in the name of SILA until the suit is heard and determined

Reasoning

The court applied the principle that the applicant must show the inconvenience of withholding the injunction is greater than that of granting it, and concluded that maintaining the status quo of the property in the trust's name best preserves the position of both factions pending full trial.

p. 4

Legal principles established

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  • The power to grant a temporary injunction is discretionary but must be exercised reasonably, judiciously and on sound legal principles, guided by the Giella principles of prima facie case, irreparable harm and balance of convenience
  • A prima facie case does not mean a case proved to the hilt but a case which can be established if the evidence led in support of it were believed
  • Irreparable injury is injury that cannot be adequately compensated for in damages, and a prima facie case alone is not sufficient

Court orders

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  1. 1.Pending the hearing and determination of the suit, all parties are restrained from selling, transferring, disposing or in any way dealing with land reference number Kipsinende/Kipsinende Block 3 (Mosop "A")/61
  2. 2.The sale proceeds of the agreement dated 19.1.2017 held in account No. ******* at Kenya Commercial Bank and account No. ******* at Sidian Bank are preserved by freezing the accounts
  3. 3.The defendants' applications dated 24.1.2017 and 15.2.2017 are disallowed
  4. 4.Costs of all applications in the cause
Jurisdiction invoked
Not expressly stated; the court exercised original jurisdiction over trust land disputes and interlocutory applications

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, "Serve In Love Africa (Sila) Trust v Abraham Kiptarus Kiptoo,Patrick Kipkogei Kibet & David Kipsang Kipyego (Environment & Land Case 21 of 2017) [2017] KEELC 1300 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1300/eng@2017-10-18

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