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ELCPartially AllowedNot stated in the excerpt (plaint dated 31/7/2023; notice of motion dated 1/8/2023)· [2024] KEELC 5793 (KLR)

Kariuki & another v Richard & another (Environment & Land Case E015 of 2023) [2024] KEELC 5793 (KLR)

Environment and Land Court
19 July 2024
BEB M Eboso
1,543 words in judgment
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The bottom line

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A Kenyan court froze all dealings and development on a Ruiru land parcel because the claimed buyer could not produce any transfer documents.

What this practically means

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Executive summary

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The two plaintiffs, registered proprietors of Ruiru/Kiu Block 6/260 since 13/3/1991, sued claiming that the property was fraudulently transferred to the late Teresia Gesare Kebwaro on 8/10/2001 without any sale agreement or transfer documents executed by them. They sought a declaration that the transfer is null and void, a permanent injunction, rectification of the register, and costs. Together with the plaint they filed a notice of motion dated 1/8/2023 seeking interlocutory injunctive orders. The 1st defendant, brother-in-law of the deceased, asserted a bona fide 2001 purchase through M/s Kiboi & Co Advocates and noted earlier CID investigations which, he said, found no fraud. Applying the Giella v Cassman Brown criteria, B M Eboso J found that the applicants had demonstrated an interest in the property as at 8/10/2001, while the respondents produced no instrument of transfer, sale agreement or proof of payment, leaving the replying affidavit bare. The court declined to make conclusive findings, noted but did not determine a possible limitation question, and resolved the application on the balance of convenience, citing the emotive nature of land, the unanswered fraud allegations, and uncertainty over the estate's ability to pay damages. The court ordered that pending the hearing and determination of the suit, no dealings be registered against the suit property and no further development undertaken, with the orders lapsing after 12 months unless extended. The judgment was delivered virtually at Thika on 19 July 2024.

Key legal issues

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01

Whether the applicants demonstrated a prima facie case with a probability of success

Holding

The applicants demonstrated an interest in the suit property as at 8/10/2001, while the 1st defendant failed to exhibit the conveyance documents evidencing the transfer

Reasoning

The applicants produced the title and certified land register showing registration on 13/3/1991 and transfer to the deceased on 8/10/2001. The respondents, alleging a bona fide sale through M/s Kiboi & Co Advocates, did not exhibit the instrument of transfer, sale agreement or proof of payment of purchase price, rendering the replying affidavit bare. The question whether the plaintiffs sold the land is reserved for trial.

p. 3
02

Whether the balance of convenience favoured granting the interlocutory relief

Holding

The balance of convenience favoured preservation of the land register and the existing status quo of the physical land

Reasoning

Land is emotive and sentimental; fraud allegations remained unanswered at the interlocutory stage; and the deceased's estate might lack other assets to pay damages should the property be disposed of during the pendency of the suit. Preservation of the register and status quo was therefore the safer course.

p. 3

Legal principles established

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  • Where serious allegations of fraud in a transfer have not been satisfactorily answered at the interlocutory stage, preservation of the suit property is preferred over reliance on damages

Court orders

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  1. 1.Pending the hearing and determination of this suit, no dealings shall be registered in the land register relating to Ruiru/Kiu Block 6/260
  2. 2.Pending the hearing and determination of this suit, no further developments shall be undertaken on Ruiru/Kiu Block 6/260
  3. 3.Unless extended by the court, the interlocutory orders shall lapse at the expiry of 12 months

Authorities

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Cases cited (1)

  • Giella v Cassman Brown Co Ltd
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (interlocutory injunction application in a suit commenced by plaint)

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, "Kariuki & another v Richard & another (Environment & Land Case E015 of 2023) [2024] KEELC 5793 (KLR)", Case Analysis (2024). Not stated in the excerpt (plaint dated 31/7/2023; notice of motion dated 1/8/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5793/eng@2024-07-19

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