A German investor has breathed a sigh of relief after a court issued temporary orders restraining his alleged former girlfriend from evicting him from his apartments in Diani, Kwale County.
Thomas Schiering successfully convinced the court to temporarily stop his eviction and the impending sale of his property by his former girlfriend Nereah Michael Said pending the hearing and determination of their case.
The two are embroiled in an ownership dispute of a prime property with each claiming to have purchased it.
Following the dispute over the land on which stand residential flats, Ms Said threatened to evict the complainant and sell the plots, prompting the man to seek court intervention.
Mr Schiering claimed that he is the legal, registered and beneficial owner of the property having obtained it as a lease from the government.
The complainant informed Justice Loise Kimongoi that after obtaining the property, he registered a company with Ms Said known as Rising Eagle Ltd in which they were shareholders and directors and transferred the property to the company.
Through lawyer Elaine Mukoya, the investor said he further transferred the property to the woman to hold it in trust and sell it and was entitled to 12 per cent of the purchase price in any sale.
“Ms Said sold one plot but failed to remit the purchase money. She also registered two other parcels of land in her name and has threatened to evict me,” he said.
IN GOOD FAITH
The man further stated that he transferred the property to the woman in good faith and in the belief that she would hold it in trust for him.
But the woman, in response, claimed that she purchased the land and sub-divided it into three plots, sold one plot and retained the other two.
For that reason, Ms Said claimed she is the legal owner of the disputed property and asked the court to dismiss Mr Schering’s application.
But in her ruling, the judge noted that Ms Said had failed to demonstrate that she had purchased the property as she claimed.
Justice Kimongoi further noted that the defendant failed to annex a copy of the sale agreement to prove she bought the property but only attached a transfer of lease.
NO SALE AGREEMENT
“There is no sale agreement between herself and the complainant annexed. I find that Mr Schiering’s explanation that she was holding the title in trust for him to be more plausible; I believe him,” the judge said.
Justice Kimongoi further stated that she was of the opinion that the woman did not tell the court the truth as she had no proof of sale or purchase.
In finding that there is need to preserve the remaining two plots and eviction of Mr Schiering, the judge said the complainant had made a strong case with a probability of success at the trial.
“He has demonstrated to the court what led to the transfer in Ms Said’s favour; it [was] in good faith. I find merit in this application,” she noted.
The judge ruled that after hearing both parties, the complainant demonstrated that he will suffer irreparable injury which cannot be adequately compensated by award of damages if injunctive orders are not granted.
“That orders are hereby issued restraining Ms Said by herself, through servants and or employees from sub-dividing, selling, transferring, threatening, evicting and interfering in any other manner with the suit property and the applicant herein, his family or occupants residing therein pending hearing and determination of the case,” the judge ruled.
The court noted there was an agreement by Ms said to hold the land in favour of her former boyfriend.
The main suit will be heard on July 3, 2019 before Justice Anne Omollo.