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ELCAllowedELC No. 188 of 2019· [2022] KEELC 2075 (KLR)

Modie Judith Farrar & another v Fizabai Ebrahim Alibhai [2022] KEELC 2075 (KLR)

Environment and Land Court
19 January 2022
NMN.A. Matheka
710 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court discharged decades-old charges over inherited land after the lender never defended the case, restoring the deceased's share to his beneficiaries.

What this practically means

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Executive summary

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The plaintiffs, legal administrators of the estate of the late Edward Farrar, sought a declaration that the deceased's 1/6 undivided share in Title No. 162/1 MN Maweni-Kisauni forms part of his estate and that two charges registered by the defendant, Fizabai Ebrahim Alibhai, in respect of loans of Kshs. 700/= and Kshs. 1,500/= advanced in June and July 1959, had been extinguished by performance of the deceased's obligations. They also invoked the 1984 repeal of the Money Lending Act and the absence of a Banking Act licence, and sought discharge of the charges, registration as absolute proprietors in trust for the beneficiaries, rectification of the register, and costs. The defendant was served by newspaper advertisement but neither attended court nor filed a defence. PW1, the 2nd plaintiff, produced letters of administration intestate, the death certificate, confirmation of grant, certificate of ownership, deed plan and charge agreement. The court found the evidence unchallenged and uncontroverted and held that the plaintiffs had established their case on a balance of probabilities. It ordered that the registered charges be discharged, that the plaintiffs be registered as absolute proprietors of the 1/6 undivided share in trust for the beneficiaries, that the register be rectified with the Deputy Registrar of the court empowered to sign the facilitating documents, and made no order as to costs given that the suit was undefended. Judgment was delivered at Mombasa on 19 January 2022 by N.A. Matheka, J.

Key legal issues

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Whether the deceased's 1/6 undivided share in Title No. 162/1 MN Maweni-Kisauni forms part of his estate and whether the registered charges over it should be discharged

Holding

Yes - the plaintiffs proved on a balance of probabilities that the share belongs to the estate and that the charges should be discharged and they registered as absolute proprietors in trust for beneficiaries

Reasoning

The defendant was served by newspaper advertisement but neither attended court nor filed a defence. PW1 produced letters of administration intestate, the death certificate, confirmation of grant, certificate of ownership, deed plan and charge agreement. The court found the evidence unchallenged and uncontroverted and therefore established on a balance of probabilities.

p. 2

Legal principles established

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  • Unchallenged and uncontroverted evidence satisfies the balance of probabilities

Court orders

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  1. 1.The registered charges be discharged and the applicants be registered as the absolute proprietors of the 1/6 undivided share in title No. 162/1 MN Maweni-Kisauni as administrators of the Estate of the late Edward Farrar in trust for his beneficiaries
  2. 2.The Register be rectified accordingly, and the Deputy Registrar of the Environment and Land Court sign the documents to facilitate the making of the entry and rectification of title
  3. 3.No orders as to costs as the suit was undefended

Authorities

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Legislation

  • Banking ActCap 488 Laws of Kenya
  • Money Lending Actrepealed in 1984
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over title to land (Title No. 162/1 MN Maweni-Kisauni)

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, "Modie Judith Farrar & another v Fizabai Ebrahim Alibhai [2022] KEELC 2075 (KLR)", Case Analysis (2022). ELC No. 188 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2075/eng@2022-01-19

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