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ELCAllowedNot stated in judgment (interlocutory notice of motion dated 11th September 2017)· [2019] KEELC 4581 (KLR)

Ibrahim Musa Mohamed v Mwanatumu Athman Athur & another [2019] KEELC 4581 (KLR)

Environment and Land Court
15 February 2019
873 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan buyer who annexes a signed sale agreement and transfer forms to an injunction application can stop a land seller from transferring the property until trial.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Court by notice of motion dated 11th September 2017 under Order 40 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act seeking to restrain the defendants from transferring land parcel CR No. 70339 pending hearing of the application and the suit, with costs in the cause. He deposed that he purchased plot No. 592/III/MN No. 17493 from the 1st Respondent in 2012 but she refused to transfer it and instead subdivided it, registering CR No. 70339 in her name and was now transferring it. The 1st Respondent opposed, denying the sale, asserting joint ownership with the late Juma Omar, denying representation of his estate, contending that plot CR No. 70339/MN/III/11333 was non-existent because the Malindi Environment and Land Court in Case No. 64 of 2007 had on 6th March 2015 nullified all subdivisions of plot 592/III/MN, and accusing the applicant of material non-disclosure in obtaining exparte orders. The court held it could not determine the existence of the sale at the interlocutory stage, but the annexed sale agreement and transfer forms established a prima facie case with a probability of success. The 1st Respondent had not shown that the nullified subdivisions created CR No. 70339, and a postal search showed the title still on record; the injunction was therefore not futile. The court also held that granting the orders did not amount to sitting on appeal since the issues were independent of those in ELC No. 64 of 2007. The application was allowed in terms of prayers (b), (c) and (d).

Key legal issues

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01

Existence of prima facie case

Holding

The annexed sale agreement and transfer forms established a prima facie case with a probability of success, justifying preservation of the status quo pending trial.

Reasoning

The applicant pleaded a purchase of a portion of land which the 1st Respondent denied. The court held it could not determine the sale question at the interlocutory stage, but the annexed sale agreement and transfer forms purportedly executed by the 1st Respondent provided a basis for a prima facie case, and it was just and equitable to preserve the applicant's claimed interest pending trial.

p. 2
02

Existence of the suit property

Holding

The suit plot CR No. 70339 still existed on the land register, so an injunction stopping dealings on it was not made in vain.

Reasoning

The 1st Respondent argued the plot did not exist because the Malindi ELC had nullified the subdivisions. The court found she did not annex documents proving that the nullified subdivision created CR No. 70339 comprising plot 11333/III/MN, while the applicant's postal search showed the title still registered with the exparte order recorded as an encumbrance.

p. 2

Legal principles established

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  • At the interlocutory stage, a party who annexes a sale agreement and transfer forms said to have been executed by the other side sets a basis for a prima facie case with a probability of success.
  • A court hearing an interlocutory application over land transactions is not sitting on appeal over a prior decision of a court of concurrent jurisdiction where the issues are independent.

Court orders

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  1. 1.Orders of temporary injunction restraining the defendants from transferring land parcel CR No. 70339 granted in terms of prayers (b), (c) and (d) of the notice of motion dated 11th September 2017

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 40
Jurisdiction invoked
Order 40 of the Civil Procedure Rules and Sections 1A, 1B & 3A of the Civil Procedure Act

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, "Ibrahim Musa Mohamed v Mwanatumu Athman Athur & another [2019] KEELC 4581 (KLR)", Case Analysis (2019). Not stated in judgment (interlocutory notice of motion dated 11th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4581/eng@2019-02-15

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