Samwel Osebe Kinanga v Isaac Tarus Toroitich & another [2018] KEELC 2751 (KLR)
The bottom line
#A Mombasa court froze construction on a disputed Mombasa plot after finding the trusted intermediary fraudulently transferred it to himself instead of the buyer.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success and irreparable loss to warrant a temporary injunction
Yes; the Applicant demonstrated a prima facie case and likelihood of irreparable loss, justifying the injunction
The Applicant annexed a sale agreement and a supporting affidavit from the registered owner confirming the plot was never sold to the 1st Defendant. The 1st Defendant admitted holding the documents but claimed transfer was authorised to settle a debt, which the court found to be an afterthought. The court found the 1st Defendant breached trust by having the plot transferred to himself instead of the Plaintiff, and that the Plaintiff, having paid the purchase price, would suffer irreparable loss without the injunction.
Whether the 1st Defendant fraudulently caused the suit property to be registered in his own name
Yes; the 1st Defendant was found to be in breach of trust and to have fraudulently effected transfer to himself
The court noted contradictions in the 1st Defendant's account - he said he sold the plot to one Nabhan for Kshs500,000 but never said he sold it to the 2nd Defendant, while the 2nd Defendant claimed to have bought it from the 1st Defendant. The court found the 1st Defendant's explanation an afterthought and held he was in breach of trust for having the property transferred to himself rather than the Plaintiff.
Legal principles established
#- Definition of a prima facie case in civil matters as set out in Mrao Ltd v First American Bank of Kenya Ltd
- The principles for granting temporary injunctions are those laid down in Giella v Cassman Brown & Co Ltd
Court orders
#- 1.A temporary injunction restraining the Defendants/Respondents by themselves, their servants and/or agents from constructing, pouring materials or doing anything on Plot No. 10866/Section II/MN in Mombasa County pending the hearing and determination of the suit
- 2.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules and Sections 3 & 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Osebe Kinanga v Isaac Tarus Toroitich & another [2018] KEELC 2751 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 3rd November, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2751/eng@2018-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.