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Court of AppealDismissedCivil Appeal 121 of 2005· [2006] KECA 268 (KLR)

Shariff Abdi Hassan v Nadhif Jama Adan

Court of Appeal of Kenya
5 May 2006
ROR. S. C. OmoloEGE. M. GithinjiJOJ. W. Onyango Otieno
3,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a landowner can win demolition orders against a trespasser even before a full trial.

What this practically means

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Executive summary

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The respondent, as registered proprietor of title No. Garissa/Township/105 under a Certificate of Lease issued in December 1998, sued the appellant for injunctions alleging trespass and erection of illegal structures. By a chamber summons the respondent sought prohibitory and mandatory interlocutory relief. After a consent order directed a government surveyor's report, the Provincial Surveyor confirmed plots 105 and 40 were distinct and half a kilometre apart, and that the appellant's alleged plot GSA/792 could not be traced in the registry map. Ransley J granted the orders sought, finding a prima facie case with probability of success and that damages would not be adequate. The appellant appealed on fourteen grounds, principally that a mandatory injunction was granted before trial, that the surveyor's report was inconclusive, and that damages were wrongly held inadequate. The Court of Appeal, in a single judgment of the court, restated the principles governing appellate interference with discretion (Mbogo v Shah, Choitram v Nazari), the higher threshold for mandatory injunctions (Locabail, Kamau Mucuha), and the rule that a trespasser must give way pending determination of a land dispute. It held the superior court's discretion was exercised on sound legal principles, the surveyor's report was properly acted upon, and the appeal could not succeed. The appeal was dismissed with costs to the respondent, affirming the High Court ruling of 19th May 2005.

Key legal issues

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01

Interference with discretionary decisions on appeal

Holding

The Court would not interfere with the judge's exercise of discretion as it was based on sound legal principles

Reasoning

The Court applied the Mbogo v Shah and Choitram v Nazari standard: appellate interference only where the judge misdirected himself and arrived at a wrong decision, or where it is manifest from the case as a whole that the judge was clearly wrong and misjustice resulted. Neither was demonstrated here.

p. 4
02

Standard for mandatory injunction at interlocutory stage

Holding

Mandatory injunctions require special circumstances and a high sense of assurance that the injunction would be shown right at trial; the standard is higher than for prohibitory injunctions

Reasoning

The Court distinguished the prayers in the chamber summons: though worded 'temporary', prayers 2 and 3 sought mandatory relief (demolition and vacation). It applied Locabail International Finance v Agro-Export and the consistent Kenyan application in Kamau Mucuha v The Ripples Ltd, holding the superior court properly applied these principles on the material before it.

p. 5
03

Reliance on the Provincial Surveyor's report

Holding

The report, though lacking historical title background, was generally reflective of what the consent order sought and the superior court did not err in acting on it

Reasoning

The report was obtained pursuant to a consent order of the court, showed plots 105 and 40 to be distinct and half a kilometre apart, and showed plot GSA/792 could not be traced in the RIM. Together with the affidavits and annexures, this supported the finding of a prima facie case with probability of success.

p. 6
04

Trespass and adequacy of damages

Holding

A trespasser must give way pending determination of the dispute; damages are no answer for a wrongdoer retaining what he has taken

Reasoning

The Court endorsed its prior holding in Jaj Super Power that trespass pending determination of a land dispute cannot be justified by the compensability of the acts in damages. This supported the finding that damages would not be an adequate remedy and justified the mandatory relief.

p. 5

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a lower court unless it misdirected itself or was clearly wrong, resulting in misjustice
  • A mandatory injunction at the interlocutory stage requires special circumstances and a higher standard of assurance than a prohibitory injunction
  • A trespasser should give way pending determination of a land dispute, and compensability in damages is no answer
  • On a first appeal the Court of Appeal is duty bound to analyze the facts afresh and make its own decision

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Ruling and orders of the High Court (Ransley J) dated 19th May 2005 granting prohibitory and mandatory injunctions affirmed

Authorities

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Legislation

  • Registered Land Actchapter 300 Laws of Kenya

Cases cited (6)

  • Jaj Super Power Cash and Carry Ltd vs. Nairobi City Council and two Others
    Civil Appeal No. 111 of 2002

    Appellate non-interference with discretion; trespasser must give way pending determination

  • Mbogo & Another vs. Shah
    [1968] EA 93

    Appellate court will not interfere with exercise of discretion by lower court

  • Choitram vs. Nazari
    [1984] KLR 327

    Interference with discretionary decisions on appeal

  • Giela vs. Cassman Brown & Co. Ltd
    [1973] EA 358

    Principles for prohibitory injunction: prima facie case, irreparable loss, balance of convenience

  • LOCABAIL INTERNATIONAL FINANCE LTD V. AGRO-EXPORT AND ANOTHER
    [1986] 1 ALL ER 901

    Principles for mandatory injunction at interlocutory stage

  • Kamau Mucuha vs. The Ripples Ltd
    Civil Application No. Nai. 186 of 1992 (unreported)

    A party should not retain an advantage obtained through a planned and blatant unlawful act

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 202 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under the Court's appellate jurisdiction over High Court civil decisions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shariff Abdi Hassan v Nadhif Jama Adan", Case Analysis (2006). Civil Appeal 121 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/268/eng@2006-05-05

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