[2004] KEHC 2395 (KLR)
The court found that the Plaintiffs, as beneficiaries of the Wakf property, had established a prima facie case for the grant of interim injunctive relief. The Defendant, as trustee, had the ability to dispose of the property, which could extinguish the Plaintiffs' beneficial interest. The existence of another suit...
Source-derived case information.
- Citation
- [2004] KEHC 2395 (KLR)
- Parties
- Plaintiff: Omar Said Awadh; Plaintiff: Fahima Said Awadh; Defendant: Mwana Soodi Binti Shaibu Wambwana
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal suit of 1978
- Procedural Posture
- Civil Suit / Interlocutory Application for Interim Injunction
- Outcome
- Application allowed. Interim orders granted as sought. Costs in the cause.
- Legal Topics
- Wakf Trusts, Beneficial Interest, Interim Injunctions, Trustee Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Said Awadh
Plaintiff
Fahima Said Awadh
Plaintiff
Mwana Soodi Binti Shaibu Wambwana
Defendant
Procedural Posture
Civil Suit / Interlocutory Application for Interim Injunction
Legal Issues
- 1 Whether the Plaintiffs have established a prima facie case for grant of interim injunction restraining the Defendant from dealing with the Wakf property pending determination of the suit.
- 2 Whether the Plaintiffs, as beneficiaries of the Wakf, are entitled to protection of their beneficial interest during the Defendant's trusteeship.
- 3 Whether the Defendant's actions threaten to extinguish the Plaintiffs' beneficial interest in the trust property.
Ratio Decidendi
The court found that the Plaintiffs, as beneficiaries of the Wakf property, had established a prima facie case for the grant of interim injunctive relief. The Defendant, as trustee, had the ability to dispose of the property, which could extinguish the Plaintiffs' beneficial interest. The existence of another suit involving different parties did not preclude the Plaintiffs' right to seek protection of their interest. The court held that all beneficiaries are entitled to enjoy and protect their trust property until the Wakf is dissolved under the Wakf Act. Accordingly, the interim orders restraining the Defendant from dealing with the property or evicting the Plaintiffs were granted...
Court Disposition
Application allowed. Interim orders granted as sought. Costs in the cause.
Orders
- Interim orders restraining the Defendant from dealing with or evicting the Plaintiffs from the Wakf property pending hearing and determination of the suit.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 78 OF 2003
1. OMAR SAID AWADH…………………………………...1ST PLAINTIFF
2. FAHIMA SAID AWADH…………………………….…2ND PLAINTIFF
=V E R S U S=
MWANA SOODI BINTI SHAIBU WAMBWANA……….DEFENDANT
R U L I N G
The Plaintiff filed a Plaint alleging illegality in the dealing with Wakf properties in which they are beneficiaries. At the same time the Plaintiffs filed this application seeking interim orders restraining the Defendant from carrying out any dealings with the property or evicting the Plaintiffs pending the hearing of this suit.
The application is opposed by the Defendant who admits that the property is indeed Wakf property and she is the sole trustee. She further states that she sued other parties. Not the Plaintiffs in RMCC No.2361 of 2002 and there is an appeal pending in respect of that sit. There was some execution of the lower court order evicting the Plaintiffs from the property but that since 16/4/2003 the 1st Plaintiff has been residing in the property. The submissions of the Defendant has raised issue of limitation of the action, that the trust property is now under the second generation (the Defendant) while the Plaintiffs are of the third generation and can only benefit after the demise of the Defendant.
I have considered the submissions by both parties. It appears there are two suits in respect of the same trust property. On 11/7/2003 Hon. Commissioner of Assize Tutui found that the two suits are not similar or between the same parties. I agree with her ruling on the issue. It is to be noted that there is illegal transfer of trust property in the name of the Defendant and that she can easily dispose of the property thus extinguish the beneficial interest of the Plaintiffs. I find that the Plaintiffs have established a prima facie case.
All beneficiaries are entitled to enjoy and protect their trust property until the Wakf is dissolved under the Wakf Act. I therefore find that interim orders sought should be granted pending the hearing and determination of this dispute.
In the circumstances, I allow application and grant orders sought. Costs shall be in the cause.
Dated at Mombasa this 19th day of March, 2004.
JOYCE KHAMINWA
J U D G E
In the presence of :-
Mr. Khatib
Munyithia – H/B for Kilonzo.
JOYCE KHAMINWA, J.