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ELCDismissedNotice of Motion dated 6/12/2018 (suit number not stated in judgment)· [2019] KEELC 5086 (KLR)

Julius Henry Forne Wafula & 2 others v Washington Wafula & another [2019] KEELC 5086 (KLR)

Environment and Land Court
11 September 2019
1,140 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a mother from selling family land because her children, who were not registered owners, failed to meet the key legal tests.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 6 December 2018 in which three Plaintiffs, children of the 1st Defendant, sought an interlocutory injunction restraining the Defendants (their parents), their agents and any surveyor from surveying, selling or transferring twelve subdivision parcels (LR. Nos BUKHAYO/MUNDIKA/10706 to 10718, carved out of LR. BUKHAYO/MUNDIKA/1002) pending hearing of the suit. The Plaintiffs claimed the 1st Defendant had apportioned some two acres to them, on which they expended about three million shillings, and feared destruction of their development and alienation of the land. The 2nd Defendant, the registered owner, replied that she bought/owned the land, subdivided it into 21 units in 2013, had farmed it since 1975, had already sold portions to third parties, and that any claim by the Plaintiffs lay in the 1st Defendant's ancestral land in Samia. The application was canvassed by written submissions; the Defendants invoked the Giela v Cassman Brown thresholds. The court held the Plaintiffs failed to establish a primafacie case against a registered owner whose ownership was never renounced, their occupation being permissive; noted the absence of any undertaking in damages, applying Gati v Barclays Bank; and observed that the order as sought would sweep in third-party portions and land not claimed by the Plaintiffs, condemning strangers unheard. The application was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiffs established a primafacie case for an interlocutory injunction against the registered owner

Holding

They did not; the land is registered in the 2nd Defendant's name and the Plaintiffs' presence was permissive, so her ownership rights were never renounced

Reasoning

The court noted it is common ground the land is registered in the 2nd Defendant's name, who subdivided it and sold portions to third parties. The Plaintiffs' presence arose from permissive arrangements, meaning the registered owner never abandoned her ownership rights. On the material availed, the court was not satisfied a primafacie case with a probability of success was demonstrated against the Defendants.

p. 2
02

Whether the absence of an undertaking in damages defeats the injunction

Holding

Yes; as non-registered owners, the Plaintiffs should have undertaken to pay damages, and their omission weakened their application

Reasoning

Relying on Gati v Barclays Bank (K) Ltd, the court held that an undertaking to pay damages is one of the criteria for granting an injunction and none had been given. Since the Plaintiffs were not registered owners, such an undertaking was warranted by the circumstances, and its omission weakened their position.

p. 2
03

Whether the injunction as framed was proper given its scope over third-party portions

Holding

No; the order as sought would affect third-party purchasers not joined to the suit and covered portions the Plaintiffs did not claim

Reasoning

Some portions had already been sold to third parties who were not parties to the case; a restraining order over them would condemn them unheard. Further, the Plaintiffs claimed only two acres apportioned to them, yet sought a restraint over the entire parcel, including portions to which they had no claim, a defect the court found telling.

p. 2

Legal principles established

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  • A registered owner of land enjoys rights not easily defeated, and establishing a primafacie case against a registered owner is difficult where the occupation was permissive.
  • An undertaking to pay damages is a criterion for granting an interlocutory injunction; without it, an injunction cannot issue.
  • A restraining order should not extend to portions of land to which the applicant lays no claim or affecting third parties not before the court.

Court orders

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  1. 1.The Notice of Motion dated 6/12/2018 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 42 Rules 1, 2, 3, 4; Order 51 Rules 1, 4, 6, 10(1), (2)

Cases cited (2)

  • Giela Vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Gati Vs Barclays Bank (K) Ltd
    [2001] KLR 525
Jurisdiction invoked
Sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 42 Rules 1, 2, 3, 4 and Order 51 Rules 1, 4, 6, 10(1), (2) 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, "Julius Henry Forne Wafula & 2 others v Washington Wafula & another [2019] KEELC 5086 (KLR)", Case Analysis (2019). Notice of Motion dated 6/12/2018 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5086/eng@2019-09-11

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