Joel Richard Wamai (Suing through Virginiah Wambui Wamai Guardian) v Mary Wanjiru Wamai [2018] KEELC 108 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case for temporary injunction
No prima facie case was established; fraud was merely alleged and the 2nd and 3rd Defendants are registered proprietors without evidence of wrongdoing
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.
Whether the Applicant would suffer irreparable loss not compensable by damages
No; the Applicant was never in possession and the land's value is quantifiable
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.
Balance of convenience
It tilts in favour of maintaining the status quo, namely the 2nd and 3rd Defendants as registered owners in possession
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.
Whether a mandatory injunction reverting the property should issue
No exceptional circumstances established to warrant a mandatory injunction at the interlocutory stage
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.
Legal principles established
#- 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
#- 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.The parties to comply with Order 11 the soonest and then set the suit down for hearing and determination
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.