Mohamed Omar Salim v Edward Mzee Karezi & 4 others [2018] KEELC 3219 (KLR)
The bottom line
#A Kenyan court froze dealings in a Kilifi plot, ruling that titles obtained without following legal procedures can be challenged even by later buyers.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for an interlocutory injunction
Yes. The Plaintiff's uncontroverted evidence of a sale agreement, payments of Kshs 1,800,000/= and custody of the original title, coupled with the fraudulent transfer, established a prima facie case with probability of success.
The court found the sale agreement, payments and possession of the original title uncontroverted since the 1st Defendant never responded. The Registrar did not deny registering the transfer while the Plaintiff held the original title, and there was no evidence of an application for a lost title, advertising or gazettement. The low consideration of Kshs 1,800,000/= against the Kshs 4,000,000/= purchase price indicated connivance to fraudulently dispossess the Plaintiff.
Indefeasibility of title of the 2nd and 3rd Defendants as purported bona fide purchasers
Their title, though not impeachable for fraud on their part, is impeachable under Section 26(1)(b) as having been acquired illegally and unprocedurally.
Following Esther Njiru & Another v Leonard Gatei, the court held that sanctity of title under Section 26(1) of the Land Registration Act yields where the title is procured illegally, unprocedurally or through a corrupt scheme. The Registrar's failure to advertise and gazette the loss of the original title rendered the transfer unprocedural, so the purchasers' title could not be treated as absolute and indefeasible pending trial.
Balance of convenience and irreparable injury
Since none of the defendants resides on or occupies the suit property, the balance of convenience tilts in favour of the Plaintiff pending trial.
The court found that no defendant resided on or occupied the property, so restraining dealings would prejudice no one, while the Plaintiff, who had invested substantial sums and held the original documents, faced the threat of development by the 2nd and 3rd Defendants that would defeat his interest if the property were further dealt with pending trial.
Legal principles established
#- An applicant for an injunction must show a prima facie case with probability of success, irreparable loss not compensable by damages, and failing which the balance of convenience decides.
- A title under Section 26(1) of the Land Registration Act is impeachable where it was acquired illegally, unprocedurally or through a corrupt scheme, even against a purchaser not party to fraud.
- A Land Registrar who registers a transfer without advertising and gazetting the loss of the original title acts illegally and unprocedurally.
Court orders
#- 1.The application dated 9th February 2017 is allowed with costs
- 2.An injunction restraining the defendants personally or through their employees, servants and/or agents from selling, leasing, developing or in any way dealing with Plot No. IR 17835/7 (Original No. 17835) Kilifi pending the hearing and determination of the suit
- 3.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Inherent jurisdiction of the court to grant interim injunctions pending hearing of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Omar Salim v Edward Mzee Karezi & 4 others [2018] KEELC 3219 (KLR)", Case Analysis (2018). Notice of Motion dated 9th February 2017 (suit over Plot No. IR 17835/7 (Original No. 17835) Kilifi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3219/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.