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ELCPartially AllowedNotice of motion dated 25th June, 2013· [2014] KEELC 220 (KLR)

Rosemary Atieno Ouma v Sephania Ouma Okumu & another [2014] KEELC 220 (KLR)

High Court of Kenya
22 September 2014
EOE. OBAGA
725 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court stopped a buyer from developing a family plot because the wife, whose loan funded the purchase, was never involved in the sale.

What this practically means

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Executive summary

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The applicant, wife of the second respondent Naftali Ouma Ajuoga, moved the court by notice of motion dated 25th June 2013 seeking an injunction restraining the first respondent from developing Plot No. 5377 at Tuwan Rural Urban Project. She claimed the plot was bought in 2003 from Kiprono Arap Byegon using money from a K-Rep bank loan she secured and entrusted to her husband; she witnessed the sale agreement and the family later cleared the balance. In May 2013 she found building materials on the plot and learned the first respondent claimed to have bought it from her husband. The first respondent opposed, contending he bought the plot at Kshs.45,000/= and, if the injunction were granted, the second respondent should refund him the purchase price at current market rates plus his expenses. Applying the Giella v Cassman Brown principles, the court held the applicant had demonstrated she was present at the purchase, that the purchase money came from her loan, that she witnessed the agreement and had savings at the material time, and that the property was bought for the family's benefit so she should have been involved in any sale. The court found a prima facie case with probability of success and allowed the application in terms of prayer 2, the injunction to remain in force until determination of the suit. No costs were awarded as none were prayed for. The first respondent's refund claim was left for later determination.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success over the matrimonial/family plot

Holding

Yes - she was present at the purchase, the purchase money came from a loan she secured, and the property was bought for the benefit of the family so she should have been involved in any sale

Reasoning

The court found the applicant demonstrated she was present when the suit property was bought, that the husband did not deny the property was bought from a loan secured by her, that she was a witness to the sale agreement, and that she had savings at the material time. The property being a family asset, any sale required her involvement, giving her a prima facie case justifying an interlocutory injunction.

p. 2

Legal principles established

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  • The principles for an interlocutory injunction are: prima facie case with probability of success, irreparable injury not adequately compensable by damages, and balance of convenience if in doubt

Court orders

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  1. 1.Injunction granted in terms of prayer 2 of the application dated 25/6/2013 restraining the first respondent from carrying out developments on the suit land
  2. 2.The injunction to remain in force until determination of the suit
  3. 3.No order as to costs

Authorities

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Cases cited (1)

  • Giella -Vs- Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction; interlocutory notice of motion dated 25th June 2013

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, "Rosemary Atieno Ouma v Sephania Ouma Okumu & another [2014] KEELC 220 (KLR)", Case Analysis (2014). Notice of motion dated 25th June, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/220/eng@2014-09-22

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