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ELCOtherNot stated in judgment (Notice of Motion dated 21st May, 2020)· [2021] KEELC 2381 (KLR)

Ezekiel Simito Ole Supeyo & 2 others v Robert Moseti Onkwani & another [2021] KEELC 2381 (KLR)

Environment and Land Court
29 July 2021
COChristine Ochieng
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to evict a buyer accused of forging a sale agreement, but blocked any sale or transfer of the disputed parcels until trial.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Rahab Kamaso Supeyo, moved the Environment and Land Court at Kajiado by Notice of Motion dated 21st May, 2020 seeking temporary and interim injunctions restraining the 1st Defendant from entering, remaining on, charging, selling, transferring, leasing, disposing of or constructing on land parcels KAJIADO/OLCHORO ONYORE/30804 and 30805, and seeking that such orders bind the Registrar of Land, Kajiado North Registry. They alleged that a Sale Agreement of 16th November, 2013 between the 1st Defendant and their deceased mother bore a forged signature, that the title was fraudulently and irregularly acquired after the mother's death, and that they would lose their inheritance. The 1st Defendant countered that he lawfully purchased the land, paid the full purchase price, was furnished with an undated Transfer Form and Land Control Board consent, was registered after the deceased's demise, and had already disposed of parcel 30805 to Maktraze Investments Limited. The court, applying Giella v Cassman Brown and defining a prima facie case per Mrao Ltd v First American Bank, found the Plaintiffs had not established a prima facie case: the fraud allegations required trial and cross-examination of the document examiner, the Plaintiffs had not controverted the 1st Defendant's occupation and subdivision, and the Certificate for Confirmation of Grant bequeathed the land to a third party rather than to the Plaintiffs. Following Nguruman, the court declined to consider the remaining injunction limbs. However, invoking UCB v Mukoome Agencies on triable issues of fraud, the court directed the Land Registrar Kajiado North to register an inhibition against both parcels pending the suit's determination, with costs in the cause. The application was thus neither granted as sought nor dismissed outright: the injunctions were refused but preservation of the suit property was ordered.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success

Holding

They did not; allegations of fraud require proof at full trial through cross-examination of the expert, and the grant shows the land was bequeathed to a third party, not the Plaintiffs

Reasoning

Applying Mrao Ltd v First American Bank, the court examined the pleadings and affidavits. The expert report on the alleged forged signature had not been tested and the Plaintiffs did not indicate they engaged the 1st Defendant in the examination. The Plaintiffs did not controvert the 1st Defendant's averments that he bought the land, paid the full purchase price, is on the land and is subdividing it. The Certificate for Confirmation of Grant bequeathed the land to Stephen Ndungu, undermining the Plaintiffs' claim of inheritance.

p. 2
02

Whether the substratum of the suit should nonetheless be preserved pending trial

Holding

Yes - an inhibition against any dealings on the suit parcels was directed to preserve the property given the unresolved fraud allegations

Reasoning

Relying on UCB v Mukoome Agencies, the court held that substantial allegations of fraud raise triable issues. Since both sides stake claims over the land and its subdivisions, with the sanctity of title in dispute and the 1st Defendant fencing and grazing livestock thereon, the dispute is best determined at full trial; preserving the substratum via an inhibition balanced the parties' positions.

p. 2

Legal principles established

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  • Where fraud is alleged, the party alleging it must be given an opportunity to prove it, and a substantial allegation of fraud raises a triable issue entitling the defendant leave to defend the suit
  • Where a plaintiff fails to establish a prima facie case, the court need not consider the other limbs of the Giella test

Court orders

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  1. 1.The Land Registrar Kajiado North be and is hereby directed to register an inhibition against land parcel numbers KAJIADO/OLCHORO ONYORE/30804 and KAJIADO/OLCHORO ONYORE/30805 respectively of any dealings pending the hearing and determination of the suit
  2. 2.The costs of the application dated 21st May, 2020 will be in the cause

Authorities

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Cases cited (14)

  • Juja Coffee Exporters Limited & Another V NIC Bank Limited & Another
    (2020) eKLR
  • Veronica Wairimu Njuguna V Jim Njuguna Muthama & Another
    (2017) eKLR
  • Susan Njeri Karo V Catherine Njeri Njoroge t/a Licat Enterprises & 2 Others
    (2016) eKLR
  • William Kiprotich Cherus V Stanley Kiplangat Rono & Another
    (2014) eKLR
  • Board of Governors, Moi High School, Kabarak & Another V Malcolm Bell
    (2013) eKLR
  • Naftali Ruthi Kinyua V Patrick Thuita Gachure & Another
    (2015) eKLR
  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Kibutiri Vs Kenya Shell
    Nairobi High Court Civil Case No. 3398 of 1980 (1981) KLR
  • Wairimu Mureithi Vs City Council of Nairobi
    Civil Appeal No. 5 of 1979 (1981) KLR 322
  • Nguruman Ltd. Vs. Jan Bonde Nielsen & 2 Others
    (2014) eKLR; CA No. 77 of 2012
  • Njeri Njoroge Vs Maina Giuchuhi & Another
    Civil Application 139/2018 (2018) eKLR
  • Raila Amollo Odinga & Another V IEBC & Others
    Election Petition 1/2013
  • Mrao Limited Vs. First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • UCB Vs Mukoome Agencies
    (1982) HCB22
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court over land parcel numbers KAJIADO/OLCHORO ONYORE/30804 and 30805

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, "Ezekiel Simito Ole Supeyo & 2 others v Robert Moseti Onkwani & another [2021] KEELC 2381 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 21st May, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2381/eng@2021-07-29

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