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ELCDismissedNotice of Motion dated 5th July 2017 (suit relating to parcel No. Ruiru/Ruiru East Block 3/1552)· [2018] KEELC 108 (KLR)

Joel Richard Wamai (Suing through Virginiah Wambui Wamai Guardian) v Mary Wanjiru Wamai [2018] KEELC 108 (KLR)

Environment and Land Court
10 December 2018
4,020 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to block a disputed Ruiru land sale, ruling that fraud claims need strong proof before any injunction can issue.

What this practically means

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Executive summary

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The Applicant, Virginiah Wambui Wamai, sued as guardian of her incapacitated husband Joel Richard Wamai under a guardianship order in Civil Misc. 94 of 2017. By a Notice of Motion under Order 40 of the Civil Procedure Rules she sought a temporary injunction restraining the Respondents from dealing with parcel No. Ruiru/Ruiru East Block 3/1552 and an order reverting the parcel to Joel Richard Wamai, alleging that the 1st Defendant, the first wife, fraudulently procured the transfer of the property to herself in 2011 while the owner was mentally incapacitated, and later transferred it to the 2nd and 3rd Defendants. The 1st Defendant relied on a family agreement of 4th October 2009 signed by the two wives distributing the husband's properties, the Land Control Board consent obtained in October 2011, and her rights as absolute proprietor, having sold the property to the 2nd and 3rd Defendants who purchased for value and took possession in 2013. The court applied the Giella v Cassman Brown principles. It held that fraud is a serious allegation requiring strict proof at trial and could not be determined on affidavit evidence; the Applicant, who had signed the 2009 agreement and never possessed the Ruiru property, had not established a prima facie case with probability of success. Damages would adequately compensate her since the land's value is quantifiable. The balance of convenience favoured maintaining the status quo with the 2nd and 3rd Defendants as registered owners in possession. The prayer for reversion was a mandatory injunction grantable only in exceptional circumstances, none of which existed. The application was dismissed entirely with costs to the Defendants, and parties were directed to comply with Order 11 and set the suit down for hearing.

Key legal issues

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01

Whether the Applicant established a prima facie case for temporary injunction

Holding

No prima facie case was established; fraud was merely alleged and the 2nd and 3rd Defendants are registered proprietors without evidence of wrongdoing

Reasoning

The court noted the property was initially registered in Joel Richard Wamai's name in 1991, transferred to the 1st Defendant in 2011 after a Land Control Board consent and a 2009 family agreement signed by the Applicant, and then sold to the 2nd and 3rd Defendants in 2012 and registered in their favour in 2013. Fraud being a serious allegation requiring strict proof at trial, the court could not find at the interlocutory stage that the transfer was fraudulent.

p. 5
02

Whether the Applicant would suffer irreparable loss not compensable by damages

Holding

No; the Applicant was never in possession and the land's value is quantifiable

Reasoning

The Applicant lives in Naivasha and was never in occupation or possession of the suit property. The property was registered in favour of the 1st Defendant in 2011 and the 2nd and 3rd Defendants in 2013. Its value can be ascertained, so any success at trial could be compensated by damages.

p. 5
03

Balance of convenience

Holding

It tilts in favour of maintaining the status quo, namely the 2nd and 3rd Defendants as registered owners in possession

Reasoning

Although the court said it was not in doubt, if it were to decide on the balance of convenience, the status quo is that the 2nd and 3rd Defendants are registered owners in possession, and that should remain until the suit is heard and determined.

p. 5
04

Whether a mandatory injunction reverting the property should issue

Holding

No exceptional circumstances established to warrant a mandatory injunction at the interlocutory stage

Reasoning

Relying on Kenya Breweries Ltd v Washington O. Okeyo, the court held mandatory injunctions are granted only in exceptional circumstances. The 2nd and 3rd Defendants had not attempted to steal a march on the Plaintiff; they had not sold the property after registration. Such orders can only issue after evidence is taken and fraud established.

p. 5

Legal principles established

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  • Allegations of fraud must be strictly pleaded and proved on a higher standard than the balance of probabilities
  • A mandatory injunction at interlocutory stage is granted only in exceptional circumstances
  • The burden of proof in the first instance lies on the person alleging lack of capacity

Court orders

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  1. 1.The Notice of Motion dated 5th July 2017 (referred to in the disposition as 6th July 2017) is dismissed entirely with costs to the Defendants/Respondents
  2. 2.The parties to comply with Order 11 the soonest and then set the suit down for hearing and determination

Authorities

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Legislation

  • Civil Procedure Act / Civil Procedure RulesSections 1A, 1B, 3, 3A, 63(a) & (e); Order 40 Rules 1, 2, 3; Order 51 Rule 1; Order 11
  • Evidence ActSection 107
  • Land Registration ActSection 26(1)
  • Registered Land Act (repealed)Section 27
  • Constitution of KenyaArticle 159

Cases cited (9)

  • Giella…Vs…Cassman Brown
    (1973) EA 358
  • Naftali Ruthi Kinyua…Vs…Patrick Thuita Githure & Another
    (2015) eKLR
  • Macharia..Vs...Annah Mutua Ndwiga & Another
    (2017) eKLR
  • James Maina Anyanga…Vs…Lorna Yimbiha Ottaro & 4 Others
    (2014) eKLR
  • Peter Kamau Kiriba…Vs…City Council of Nairobi & 3 Others
    (2015)
  • Nyutu & Others…Vs…Gatheru & Others
    (1990) KLR 554
  • Agip (K) Ltd...Vs...Maheshchandra Himatlal Vora & Others
    Civil Appeal No.213 of 1999
  • Emfel Ltd…Vs…Registrar of Titles Mombasa & 2 Others
    (2014) eKLR
  • Kenya Breweries Ltd & Ano….Vs….Washington O. Okeyo
    Civil Appeal No.332 of 2000, 1EA 109
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(a) & (e) and Order 40 Rules 1, 2, 3 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Joel Richard Wamai (Suing through Virginiah Wambui Wamai Guardian) v Mary Wanjiru Wamai [2018] KEELC 108 (KLR)", Case Analysis (2018). Notice of Motion dated 5th July 2017 (suit relating to parcel No. Ruiru/Ruiru East Block 3/1552). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/108/eng@2018-12-10

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