Henry Wambega & 4 others v Government of Kenya through A. G & 7 others; Safepark Limited (Interested Party) [2019] KEELC 3014 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte orders of 16th July 2018 bound the Interested Party before its joinder
The orders did not affect the Interested Party before it applied to be joined; the court's 4th September 2018 directions that the order be served by advertisement came after the order and were directed at the parties to the suit.
The court observed that the orders of 16th July 2018 were issued before the Applicant was joined, so it had no opportunity to reply. The Petitioners claimed all affected parties were notified by advertisement in the Standard Newspaper of 13th September 2018, but the order predates that advertisement. The court therefore held the order could only affect the Interested Party after joinder.
Whether the Applicant purchased the suit land after commencement of the Petition
The title entries and county approvals show transfer to Safe Park Limited on 6th October 2016 and building plan approvals in March 2017, both over a year before the Petition filed on 28th January 2018.
The Petitioners argued the Applicant acquired the land after commencement of the petition. The Applicant produced its title deed and receipts for building plan approvals from the County Government of Kilifi. The court found the transfer and approvals predated the Petition by over a year, undermining the Petitioners' objection.
Whether the injunction against the Interested Party's construction should be varied
The injunction was varied to allow Safe Park Limited to continue construction on its parcel, but the prohibition on transfer/disposal of the land remained in force.
The Petitioners were not living on the suit land and sought only compensation for developments, with no prayers as to existing developments. No irreparable harm was disclosed. The court found no viable reason to stop development but preserved the status quo on transfers pending determination of the Petition.
Legal principles established
#- A party affected by ex-parte orders issued before it was joined to proceedings has a right, upon joinder, to oppose those orders and participate in arguments on whether they should hinder it from using its land.
- An injunction will not be maintained against a party who acquired and was approved to develop land before the suit was filed, where no irreparable harm not compensable in damages is shown.
Court orders
#- 1.Safe Park Limited deemed and joined as an Interested Party to the Petition
- 2.The orders of injunction issued on 16th July 2018 and extended pending hearing and determination of the Petition varied to the extent that the Interested Party (Safe Park Ltd) is allowed to carry on with its construction works on its suit Parcel C. R. No. 44069, L. R. No. MN/111/4781
- 3.The limb of the order barring transfer and/or disposing of the subject land to any third parties pending hearing and determination of the petition remains in force
- 4.Prayers 5 and 6 of the Motion (security for costs and bank guarantee of Kshs 95,000,000 as projected damages) declined
- 5.Each party to bear their own costs of the Motion
- Jurisdiction invoked
- Constitution of Kenya, 2010 petition; application brought under Rules 7, 19 and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Wambega & 4 others v Government of Kenya through A. G & 7 others; Safepark Limited (Interested Party) [2019] KEELC 3014 (KLR)", Case Analysis (2019). (Petition filed 28th January 2018 - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3014/eng@2019-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.