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ELCDismissedMalindi ELC Suit (Plaint dated 1st July 2016, filed 20th July 2016)· [2019] KEELC 2880 (KLR)

Alis Hariff Abdalla v Abubakar Muhdhar Shee Ali & another [2019] KEELC 2880 (KLR)

Environment and Land Court
26 June 2019
JOJ. O. Olola
1,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Malindi court dismissed a 2016 land claim over a 1991 transfer because fraud was not proved and the 25-year delay breached Kenya's Limitation of Actions Act.

What this practically means

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Executive summary

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The Plaintiff sued for rectification of the register, seeking revocation of the registration of Muhdhar Shee Ali as owner of Plot No. 965 Malindi (CR 14601) and restoration of the name of his great-grandfather, Sheikh Bate. He alleged the registration of the Defendants' father on 1st August 1991 was fraudulent, illegal, unprocedural or a mistake, contending that under Islamic law his late father, Abdalla Sheikhan, was the sole heir of Sheikh Bate's estate. The Defendants denied fraud, asserting their father was a beneficiary who purchased the shares of the two heirs, Sheikh Abubakar and Mwanasha Shariff, in July 1991. The 1st Defendant did not attend the hearing but filed closing submissions; the initial 2nd Defendant was withdrawn and substituted with Husna Muhdhar Shee Ali. The court found that the Certificate of Ownership showed the property transferred to the two heirs in 1990 and their shares transferred to the Defendants' father, one for consideration of Kshs 20,000. The Plaintiff had particularised a family tree rather than particulars of fraud and led no evidence of wrongdoing, so a good title was presumed. The court further held the suit, filed in 2016 over a 1991 transfer without leave, offended the Limitation of Actions Act. The suit was dismissed with costs to the Defendants on 26th June 2019.

Key legal issues

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01

Whether the registration of the Defendants' father was fraudulent

Holding

No fraud was proved; the Plaintiff gave no particulars and led no evidence of wrongdoing

Reasoning

The Plaintiff anchored his case on fraud, illegality and failure to follow procedure but particularised only a family tree instead of the alleged particulars of fraud. The Certificate of Ownership showed transfers of the shares of the two heirs, Sheikh Abubakar and Mwanasha Shariff, to the Defendants' father for consideration. In the absence of evidence of wrongdoing, a good title was presumed.

p. 2
02

Whether the suit was statute-barred

Holding

The claim over land transferred in 1991, filed in 2016 without leave, offended the Limitation of Actions Act

Reasoning

The court noted the transfer occurred in 1991 and the Defendants' father, registered proprietor, died in 1999, yet the Plaintiff never made a claim during his lifetime. Filing suit in 2016 without court leave offended the Limitation of Actions Act. This independently justified dismissal.

p. 2

Legal principles established

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  • A party alleging fraud must particularise and prove it; in the absence of evidence of wrongdoing, a purchaser of shares from the registered heirs acquires a good title
  • A claim over land transferred in 1991 and brought in 2016 without leave offends the Limitation of Actions Act

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Limitation of Actions Actnot specified
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court in a claim for rectification of the register of land

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, "Alis Hariff Abdalla v Abubakar Muhdhar Shee Ali & another [2019] KEELC 2880 (KLR)", Case Analysis (2019). Malindi ELC Suit (Plaint dated 1st July 2016, filed 20th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2880/eng@2019-06-26

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