Chema Holdings Limited v Julius Juma Kuyoyi & another [2017] KEELC 955 (KLR)

The court relied on the Basil Criticos principle that demonstrated knowledge displaces the need for strict proof of personal service. It found the police and hospital were served and stamped the order, making it improbable the defendants were uninformed. The defendants' failure to identify Isaac Wekesa or produce his affidavit, and the missing features of a daytime burial (programmes, photography, attendance by the chief), led the court to infer a deliberate night burial to evade the order.

The court invoked Order 1 Rules 9 and 10 of the Civil Procedure Rules, holding that a plaintiff cannot reasonably be expected to know every registered name of an intended defendant, since registration documents are in the defendants' private custody. The defendants did not deny being children of the deceased, and the further affidavit confirmed the names used in the proceedings were the names by which they are known. The defence on misdescription therefore fell to the ground.

Applying the Locabail principles as restated in Beatrice Ngima Mwai v Gichine Mwai, the court held that although mandatory injunctions are granted sparingly and require a high sense of assurance, an interlocutory mandatory order is available where the defendant has attempted to steal a match. The defendants, aware of pending litigation, altered the position to the plaintiff's disadvantage after the injunction issued, conduct the court could not condone.