Maikuma Wekesa Buchunju v Donald Wekesa Muyundo & 7 others [2018] KEELC 448 (KLR)
The bottom line
#A Kenyan court blocked further dealings with family land after a bank's 1980 auction was found illegal because it skipped required statutory notices.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
A prima facie case was established because the chargee failed to produce evidence of statutory notices of default and sale, so the transfer to it and all subsequent transfers were potentially illegal; the Applicant's right has been or is threatened with violation
The court applied Giella and Nguruman. The Green Card confirmed the deceased's 1963 registration; the 6th defendant deponed that he defaulted and its statutory power of sale was exercised in 1980, but produced no statutory notices. Non-compliance with s.74(1) of the repealed Registered Land Act rendered the transfer illegal, giving the Applicant a right apparently infringed warranting explanation or rebuttal.
Irreparable injury
Damages would not adequately compensate because the transfer was not above board and the deceased is buried on the suit land where the family has lived since 1963
The court found the initial transfer was in violation of the law, and relying on Mohammed v Commissioner of Lands held that where illegality is shown the defendant cannot claim damages are adequate. The family's possession, the burial of the deceased on the land, and the threat of eviction by the 1st defendant and buyers established injury beyond monetary compensation.
Balance of convenience
Even if the court were in doubt, the balance of convenience favours granting the injunction as it carries the lower risk of injustice
Applying the third Giella limb and Films Rover International, the court held that preserving the applicant's possession of the suit land pending trial is the course with the lower risk of injustice should the court turn out to have been wrong.
Legal principles established
#- Where a chargee exercises its statutory power of sale, failure to prove compliance with the statutory notice requirements renders the sale and all subsequent transfers illegal
- Although a chargee may bid at and purchase the charged land under Section 77(1) of the repealed Registered Land Act, it must still comply with Section 74(1) statutory notice requirements before sale
Court orders
#- 1.The defendants, their servants, trustees, agents and any persons claiming through them are restrained from trespassing, entering, offering for sale, transferring, charging and/or in any other way interfering or dealing with land parcel No. NDIVISI/NDIVISI/177 pending the hearing and determination of the suit
- 2.The parties to comply with pre-trial directions so that the suit is heard and determined within 12 months, failing which the order of injunction shall lapse
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Order 40 Rules 1 and 4, Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maikuma Wekesa Buchunju v Donald Wekesa Muyundo & 7 others [2018] KEELC 448 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 17th October 2017, filed 8th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/448/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.