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ELCPartially AllowedUnstated in the judgment (Mombasa ELC suit)· [2018] KEELC 1406 (KLR)

Mohamed Shabir Kassam v Hafeez Abdul Majeed & 3 others [2018] KEELC 1406 (KLR)

Environment and Land Court
8 October 2018
CYC. Yano
1,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Mombasa court cancelled fraudulent land transfers, confirming that a vendor paid in full cannot resell or re-register the same property.

What this practically means

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Executive summary

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Mohamed Shabir Kassam sued four defendants seeking declarations that successive transfers of LR No. MN/1/3234 (grant CR 15906/1) after the transfer to him were fraudulent, null and void; a declaration that he is the legal and indefeasible proprietor; cancellation of the impugned transfers by the Land Registrar (4th Defendant); and permanent injunction against the 1st to 3rd Defendants. The Plaintiff's case was that he bought the property from the 1st Defendant in August 2007 for Kshs. 3,000,000 payable by supplying fuel; the price was fully settled and acknowledged, he took possession and developed the land, and the transfer to him was registered on 7th June 2010. He alleged that the 1st Defendant thereafter colluded with registry officers to make the deed file disappear, obtained a provisional certificate, and through a succession cause fraudulently reacquired and transferred the property to the 2nd Defendant and then the 3rd Defendant. None of the Defendants entered appearance or filed a defence; interlocutory judgment was entered on 27th January 2017 and the suit proceeded to formal proof on 21st March 2018, where the Plaintiff testified alone and produced the sale agreement, payment receipts and acknowledgment letters. The court, satisfied on a balance of probabilities, held that a valid agreement existed, that the Plaintiff's evidence was uncontroverted, and that the Defendants' dealings with land already sold were unlawful. Judgment was entered for the Plaintiff with declarations of fraud and nullity, restoration of the title, a permanent injunction, and costs.

Key legal issues

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01

Whether the Plaintiff proved the sale agreement and payment of the purchase price to the required standard

Holding

The court found a valid sale agreement supported by receipts and an acknowledgment letter, proving the Plaintiff's claim on a balance of probabilities

Reasoning

The Plaintiff produced the sale agreement dated 28th August 2007, receipts evidencing payment in the agreed mode (fuel supplied), and a letter of 29th June 2009 acknowledging full payment and permitting possession. With no defence filed and the evidence uncontroverted after formal proof, the court found the Plaintiff was the rightful owner entitled to the reliefs claimed.

p. 2
02

Whether the subsequent transfers of the suit property were fraudulent and liable to be nullified

Holding

The court declared the transfers by the 1st Defendant to the 2nd and 3rd Defendants and all subsequent transactions fraudulent, illegal and null and void, since the land had already been sold to the Plaintiff

Reasoning

Having found a valid agreement and full settlement of the purchase price, the court held the 1st Defendant's actions - including reconstruction of a deed file through succession proceedings and onward transfers - were unlawful. The Defendants' actions on land already sold to the Plaintiff could not stand against the Plaintiff's proprietary rights.

p. 2

Legal principles established

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  • A vendor who has received the full purchase price and allowed the purchaser into possession has no right to process title in his own favour and transfer the land to a third party

Court orders

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  1. 1.A declaration that the transfer of LR. NUMBER MN/1/3234 comprised in a grant registered as CR Number 15906/1 by the 1st Defendant to the 2nd Defendant and the transfer from the 2nd Defendant to the 3rd Defendant and all other related transactions are fraudulent, illegal and null and void
  2. 2.A declaration that the Plaintiff is the legal and indefeasible proprietor of the suit property
  3. 3.An order directing the 4th Defendant to delete and/or cancel all transfers and subsequent registrations after the registration into the Plaintiff's name and restore the title to the Plaintiff
  4. 4.A permanent injunction restraining the 1st, 2nd and 3rd Defendants from selling, transferring, disposing of, changing, leasing or dealing with the suit property
  5. 5.Costs of the suit to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes

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, "Mohamed Shabir Kassam v Hafeez Abdul Majeed & 3 others [2018] KEELC 1406 (KLR)", Case Analysis (2018). Unstated in the judgment (Mombasa ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1406/eng@2018-10-08

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