Nirmar Kaur Sian & another v Prithvi Pal Singh Sian & 2 others [2019] KEELC 911 (KLR)

The 2nd plaintiff, a daughter and sibling of the other litigants, produced no evidential material disclosing any interest in the suit property. The chain of title shown ran from Arta Singh Sian and Nirmal Kaur Sian as tenants in common, with the widow taking the whole by assent in 1998, and the transfer to the 1st defendant in 2002. Without a demonstrated legal or equitable basis, no prima facie case existed to warrant an injunction in her favour.

The court found it impossible at the interlocutory stage to determine whether the sale agreement and transfer were lawfully procured or fraudulent. Red flags included that the same advocate (Mugambi Gathungu) witnessed both parties' signatures, the law firm was shown as acting for the 1st defendant with no advocate disclosed for the 1st plaintiff, and there was no evidence of payment of consideration to the 1st plaintiff. Given the 1st plaintiff's continued occupation since 2002, the court opted to preserve the property and maintain the status quo rather than grant either injunction.

The 1st defendant sought a mandatory injunction to compel his mother to vacate, relying on authority that such relief issues where the injury is immediate and pressing and causes extreme hardship. The court held that the disputed and unclear circumstances of the transfer — contested execution, undemonstrated consideration, and the 1st plaintiff's long possession as her matrimonial home — made a mandatory injunction inappropriate at that stage.

The 1st defendant argued the cause of action arose 17 years earlier in 2002. The plaintiffs invoked section 26 of the Limitation of Actions Act, submitting that where fraud is pleaded, time runs only from discovery. The court noted the plea of fraud and the claim of discovery in 2018 and, absent controverting evidence, declined to lock the plaintiff out of the seat of justice at the interlocutory stage.