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ELCAllowedNot stated in the extract (Environment and Land Court, Machakos)· [2017] KEELC 1788 (KLR)

Josephat Mulwa Mukima v Jesse Ng’ang’a Gakobo & 11 others [2017] KEELC 1788 (KLR)

Environment and Land Court
22 September 2017
1,683 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court blocked further dealings on disputed Machakos land because the alleged buyers could not prove they actually paid the purchase price.

What this practically means

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Executive summary

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By a Notice of Motion dated 16th January, 2017, the Plaintiff, the registered proprietor of Donyo Sabuk/Komarock Block 1/373 since 28th September, 1993, sought interim injunctions restraining the Defendants from encroaching on, sub-dividing, selling, alienating or charging the suit land and its resultant sub-divisions, conservatory orders staying further dealings, leave for substituted service, and oversight of implementation of orders by the OCPD and DCIO, Kangundo. The Plaintiff alleged the 1st-7th Defendants fraudulently sub-divided and transferred his land without his knowledge or sale. The 1st, 4th, 5th, 6th and 7th Defendants countered that they purchased portions from the Plaintiff under sale agreements dating from 2006, obtained Land Control Board consents, and underwent boundary verification. The 8th, 10th and 11th Defendants claimed to be innocent purchasers for value in active possession. The court noted the register showed the parcel closed on sub-division in 2013 and that the exhibited agreements totalled 94 acres for Kshs. 7,600,000, but no evidence showed payment of the purchase price. In consequence, the claim of fraudulent acquisition was not frivolous, the Plaintiff had a prima facie case with chances of success, and the 8th-11th Defendants' case was wholly dependent on that of the 1st-7th Defendants. The court allowed the application as prayed on 22nd September, 2017 in Machakos, through O.A. Angote, Judge.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for interlocutory injunctive relief

Holding

Yes. In the absence of evidence that the purchase price was paid, the Plaintiff's assertion of fraudulent acquisition by the 1st-7th Defendants was not frivolous, and the Plaintiff showed a prima facie case with chances of success.

Reasoning

The copy of the register confirmed the Plaintiff was registered proprietor of parcel 373 in 1993, which was closed upon sub-division in 2013. Although sale agreements totalling Kshs. 7,600,000 were exhibited, no evidence was produced showing the purchase price was paid. At trial the Defendants must show how they purchased the land and whether the Plaintiff signed the agreements and LCB applications. Further transfers to third parties were likely absent an injunction.

p. 4
02

Status of subsequent purchasers of the resultant sub-divisions

Holding

The 8th-11th Defendants' case was wholly dependent on the success of the 1st-7th Defendants' case; if fraud is proved at trial, their purchases would be declared null and void.

Reasoning

The 8th-11th Defendants bought the resultant sub-divisions from the 1st-7th Defendants. Since their root of title derives entirely from those transferors, a finding of fraud at trial against the 1st-7th Defendants would invalidate the subsequent purchases. This made interim protection of the land pending trial appropriate.

p. 4

Legal principles established

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  • Where purchasers of sub-divisions claim through an alleged fraudulent transfer, their case is wholly dependent on the success of their transferors' case

Court orders

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  1. 1.The Plaintiff's Application dated 16th January, 2017 allowed as prayed, including injunction restraining the Defendants from encroaching, sub-dividing, placing beacons, selling, alienating, charging or interfering with Title No. Donyo Sabuk/Komarock Block 1/373 and the resultant sub-divisions, and conservatory orders staying further dealings pending hearing of the suit
  2. 2.Application dated 16th January, 2017 allowed as prayed with the costs thereof
Jurisdiction invoked
Not stated in the extract; interlocutory application within the main suit before the Environment and Land Court

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, "Josephat Mulwa Mukima v Jesse Ng’ang’a Gakobo & 11 others [2017] KEELC 1788 (KLR)", Case Analysis (2017). Not stated in the extract (Environment and Land Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1788/eng@2017-09-22

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