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ELCAllowedNot stated in judgment (application dated 8/2/2017)· [2017] KEELC 3493 (KLR)

Richard Khamala Wafula v Dismas Wafula & another [2017] KEELC 3493 (KLR)

Environment and Land Court
21 February 2017
MNMwangi Njoroge
817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer won a temporary injunction protecting his 5-acre plot because his documents beat the other side's bare denial.

What this practically means

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Executive summary

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By a Notice of Motion dated 8 February 2017, the plaintiff/applicant sought a temporary injunction restraining the defendants from entering, constructing on, claiming or using 5 acres situated on Plot No. 86 Gidea Settlement Scheme, pending the hearing and determination of the suit. He claimed to have purchased the land in 2004 from one A.A.A. Ekirapa, that the defendants executed the land purchase covenant on his behalf, that he had used and leased the land through agents since 2004, and that on 20 January 2017 the defendants trespassed and chased away his agents. The 1st defendant, in a replying affidavit sworn on 14 February 2017, denied the purchase and asserted his own ownership, stating the plaintiff had never set foot on the land; the 2nd defendant filed no response. The court observed that the 1st defendant's affidavit was unsupported by any documents and amounted to a mere denial, while the applicant's averments were supported by documentary evidence, including a letter from Waruhiu K'Owade & Nganga Advocates identifying the purchase agreement, and a sketch map showing the two plots as distinct. Applying the Giella v Cassman Brown principles, the court found a prima facie case with probability of success, noted the absence of proof of irreparable injury, but held the balance of convenience favoured the applicant. It granted the temporary injunction until the hearing and determination of the suit, with costs of the application in the cause.

Key legal issues

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01

Prima facie case with probability of success

Holding

The applicant demonstrated a prima facie case with a probability of success

Reasoning

The applicant produced documentary evidence including a letter from Waruhiu K'Owade & Nganga Advocates identifying him as having entered into an agreement to purchase 5 acres from Plot No. 86 Gidea Settlement Scheme. The 1st respondent's replying affidavit was a bare denial with no supporting documents, and the 2nd respondent did not respond at all.

p. 2
02

Irreparable injury

Holding

The applicant did not establish irreparable injury not compensable by damages

Reasoning

The court noted there was no material showing the applicant might suffer irreparable injury not adequately compensable by an award of damages, but proceeded on the third Giella principle of balance of convenience.

p. 2
03

Balance of convenience

Holding

The balance of convenience tilts in favour of granting the temporary injunction

Reasoning

Since the 1st respondent's mere denial and the 2nd respondent's lack of response were insufficient to controvert the applicant's documentary evidence, the court found the balance of convenience favoured the applicant and granted the injunction.

p. 2

Legal principles established

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  • Injunctions are equitable remedies granted at the discretion of the court and an applicant must show a prima facie case with a probability of success
  • Where the court is in doubt on the first two Giella principles, the application may be decided on a balance of convenience

Court orders

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  1. 1.Temporary injunction restraining the respondents and their agents from entering, constructing on, claiming or in any other way using the 5 acres belonging to the applicant situated on Plot Number 86 Gidea Settlement Scheme until the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Cases cited (1)

  • Giella -vs- Cassman Brown & Co. Ltd
    [1973 EA 358
Jurisdiction invoked
Inherent interlocutory jurisdiction of the High Court/Environment and Land Court under the applicable civil procedure framework (not expressly cited in the judgment)

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, "Richard Khamala Wafula v Dismas Wafula & another [2017] KEELC 3493 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 8/2/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3493/eng@2017-02-21

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