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ELCPartially AllowedOriginating Summons dated 28th January, 2020 (with Notice of Motion dated 28th January, 2020)· [2021] KEELC 1035 (KLR)

Simon Eshitemi v Abdullahi Shariff Abdiwahab & another [2021] KEELC 1035 (KLR)

Environment and Land Court
9 November 2021
SOS. Okong'o
2,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Nairobi land court blocked any sale or transfer of a disputed Nairobi property but let the current occupants stay put until the ownership dispute is fully tried.

What this practically means

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Executive summary

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The applicant, registered as joint proprietor of L.R No. 36/75/1 Nairobi with his late brother Jeremiah Odera Eshitemi since 1971, brought an Originating Summons in January 2020 seeking a declaration that the original owners were defrauded and retransfer of the property, together with a Notice of Motion seeking a temporary injunction against the respondents, who were registered as proprietors in 2016 after purchasing from the deceased's wife, Emily Judith Odera. The applicant alleged that the 2015 indenture transferring the property to the deceased's wife was a forgery, that his deceased brother could not have signed a 2015 document having died in 2011, and that no consideration was paid. The respondents asserted they were bona fide purchasers for value without notice, relying on due diligence, a statutory declaration allegedly signed by the applicant, and an earlier 2011 sale agreement between the original owners and the deceased's wife. Applying the Giella v Cassman Brown principles and the Ougo v Otieno status quo principle, the court found a prima facie case: there was no convincing evidence the applicant executed the 2015 indenture or received the Kshs. 10,000,000/- consideration, and no explanation for the four-year delay in registering it. Irreparable harm was also established since a sale would place the property beyond the applicant's reach. However, because the respondents were already in possession and constructing, the court declined the injunction as prayed and instead ordered an inhibition against any further dealings with the property, restraining the respondents from selling, transferring or charging it, with costs in the cause. Core questions of forgery, sale and consideration were left for trial.

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

Yes - the applicant demonstrated a right over the suit property threatened with violation, given the lack of evidence he executed the 2015 indenture or received the purchase price

Reasoning

The court found the applicant was a joint proprietor, that the deceased died in 2011 yet the property was purportedly transferred in 2015, that the applicant denied executing the indenture, and that no evidence showed he signed it or received the Kshs. 10,000,000/- consideration. No explanation was given for the four-year delay in stamping and registering the indenture if signed in 2011.

p. 2
02

Whether irreparable harm would result absent an order

Holding

Yes - as registered proprietors, the respondents could sell the property, putting it beyond the applicant's reach

Reasoning

The court reasoned that the respondents, being registered proprietors, were free to deal with the property unless restrained; a sale would place the property beyond the applicant's reach, amounting to irreparable harm not adequately compensable in damages.

p. 3
03

The appropriate interlocutory order where facts are seriously conflicted and possession has already changed hands

Holding

The injunction as prayed was refused; instead the status quo was maintained through an inhibition restraining further dealings

Reasoning

The respondents were already in possession and constructing. Granting the injunction as prayed would have been inappropriate; maintaining the status quo protects both parties' rights pending trial, where issues such as whether the applicant sold his interest and received consideration can be investigated.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • Where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute has been decided at the trial

Court orders

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  1. 1.Pending the hearing and final determination of the suit or further orders, an inhibition inhibiting the registration of any other or further dealings with L.R No. 36/75/1, restraining the respondents from selling, transferring or charging the suit property pending further orders
  2. 2.Costs of the application to be in the cause

Authorities

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Cases cited (4)

  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Nguruman Limited v. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Limited v. First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Ougo and Another v Otieno
    [1997] KLR 364
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a suit filed by Originating Summons)

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, "Simon Eshitemi v Abdullahi Shariff Abdiwahab & another [2021] KEELC 1035 (KLR)", Case Analysis (2021). Originating Summons dated 28th January, 2020 (with Notice of Motion dated 28th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1035/eng@2021-11-09

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