Julius Henry Forne Wafula & 2 others v Washington Wafula & another [2019] KEELC 5086 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a primafacie case for an interlocutory injunction against the registered owner
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
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.
Whether the absence of an undertaking in damages defeats the injunction
Yes; as non-registered owners, the Plaintiffs should have undertaken to pay damages, and their omission weakened their application
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.
Whether the injunction as framed was proper given its scope over third-party portions
No; the order as sought would affect third-party purchasers not joined to the suit and covered portions the Plaintiffs did not claim
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 6/12/2018 is dismissed
- 2.Costs of the application awarded to the Defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.