Nassar Ahmed Chaudhry v Jared Orango Edmond [2014] KEELC 166 (KLR)
The bottom line
#The High Court ordered a defendant to vacate a Nairobi property within 30 days because his occupation rested on court orders that had already been quashed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for a mandatory injunction of eviction
The Plaintiff established a prima facie case by producing evidence of the deceased's lease from 1965, the renewal process, and a provisional title issued after renewal
The court applied the Mrao definition of a prima facie case. The Plaintiff showed the deceased was registered lessee from 1965, produced the Commissioner of Lands and City Council renewal approvals, and a provisional Certificate of Title after the original went missing. This demonstrated an apparent right capable of calling for an explanation or rebuttal from the Defendant.
Whether special circumstances existed to warrant the mandatory injunction given the Defendant's competing title
Special circumstances existed because the Defendant's possession rested solely on lower court orders that had been quashed, so possession reverted to the Plaintiff pending full trial
Although the Defendant produced his own title, his possession derived from eviction orders in CMCC No. 433 of 2011 which Gacheche J. quashed, accompanied by a prohibition order. Those orders are legally non-existent, defeating any res judicata or sub judice objection. Ownership remains live for trial, but possession reverts to the pre-order position, justifying the mandatory injunction with adequate notice.
Whether a pending appeal from the judicial review judgment barred the relief
No evidence of a memorandum of appeal was produced; a Notice of Appeal alone does not institute an appeal under Rule 82 of the Court of Appeal Rules
The Defendant relied on a Notice of Appeal filed 1st July 2011. The court distinguished the limited effect of a notice under Order 42 Rule 6(4) (stay applications) from institution of an appeal under Rule 82, which requires lodging a memorandum and record of appeal within sixty days. Absent evidence of such lodgement, there was no pending appeal.
Legal principles established
#- A mandatory injunction requires special circumstances over and above a prima facie case, and is granted only in clear cases
- When orders on which possession rests are quashed, possession reverts to the position before those orders were made
- A Notice of Appeal alone does not institute an appeal; an appeal is instituted by lodging a memorandum and record of appeal within sixty days under Rule 82
Court orders
#- 1.The Defendant, his agents, legal representatives and any persons claiming under him shall within thirty (30) days of service give vacant possession of L.R No. 209/1944; eviction orders to issue upon default
- 2.The Plaintiff to serve the Defendant with the orders within fourteen (14) days of the date of the ruling
- 3.The OCS Pangani Police Station to supervise and ensure compliance with and enforcement of the orders
- 4.Costs of the Notice of Motion dated 16th May 2014 to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the plaintiff's suit and interlocutory application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nassar Ahmed Chaudhry v Jared Orango Edmond [2014] KEELC 166 (KLR)", Case Analysis (2014). Notice of Motion dated 16th May 2014 (Plaintiff's application, High Court Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/166/eng@2014-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.