Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Notice of Motion dated 24th September, 2013)· [2014] KEELC 303 (KLR)

Mohamed Abdalla A Shikely & 8 others v Mohamed Abdalla Salim [2014] KEELC 303 (KLR)

Environment and Land Court
20 June 2014
2,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to order demolition of a house built on family land because the person had been allowed on the land and the dispute needs a full trial.

What this practically means

#

Executive summary

#
The Plaintiffs, beneficiaries and registered proprietors of Land Portion Number 2077 (original No. 422/3) Malindi, moved the court by Notice of Motion dated 24th September 2013 for an interlocutory mandatory injunction compelling the Defendant to demolish his house and developments on the suit land, and a consequential prohibitory injunction restraining him from trespassing or remaining thereon pending trial. The Plaintiffs alleged their late father permitted the Defendant in 1985 to erect a temporary workshop only, which he unlawfully converted into a permanent residence without consent or Council approval, amounting to unlawful retainer and trespass. The Defendant asserted he was permitted to build with Council approvals, had occupied for over 31 years, and claimed the land was gifted to him as compensation for services. The court applied the Locabail and Shepherd Homes principles, as adopted in Mucuha v Ripples, that a mandatory injunction at the interlocutory stage is granted only exceptionally, in clear cases and where the court feels a high degree of assurance about the trial outcome. It found the initial entry was licensed and hence not trespass; whether the Defendant exceeded the licence terms, when the structure was converted, whether a gift was made, and the effect of Physical Planning Act enforcement notices requiring the Council's joinder, were all matters for trial. The court declined to order demolition or eviction at the interlocutory stage and dismissed the application with costs.

Key legal issues

#
01

Whether a mandatory injunction could issue at the interlocutory stage

Holding

No. Mandatory injunctions at the interlocutory stage are exceptional, granted only in the clearest of cases and where the court feels a high degree of assurance about the outcome at trial.

Reasoning

The court applied the Locabail and Shepherd Homes guidelines, as adopted by the Court of Appeal in Mucuha v Ripples, that mandatory injunctions on motion are granted only exceptionally and in the clearest cases. Because the terms on which the Defendant entered and developed the land are disputed, and the grantor is deceased, the necessary assurance was absent; such orders can only follow a full trial.

p. 4
02

Whether the Defendant's occupation constituted trespass

Holding

The initial entry could not be trespass since the Plaintiffs admitted their father permitted the Defendant onto the land.

Reasoning

The court held that trespass is an unauthorised or unlawful entry, but entry with the owner's consent or licence is not trespass. Whether the Defendant abused the terms of that licence, converted the workshop to a residence, or acquired prescriptive rights are contested factual matters - particularly as the permission-giver is dead - that only witnesses at a full trial can resolve.

p. 4
03

Whether the Enforcement Notices under the Physical Planning Act justified demolition orders

Holding

The notices must be enforced under the Physical Planning Act itself, and it was unclear the court could order demolition before the Council is joined.

Reasoning

The Plaintiffs relied on Council enforcement notices showing unauthorised permanent construction. The court held such notices are enforceable pursuant to the Physical Planning Act and expressed doubt whether it could issue a demolition order on their basis before the Municipal Council of Malindi is enjoined in the suit. This made the interlocutory demolition relief even less appropriate.

p. 5

Legal principles established

#
  • A mandatory injunction should not be granted at an interlocutory stage in the absence of special circumstances, and only in clear cases where the court feels a high degree of assurance that the injunction would be upheld at trial
  • Where entry onto land is by the owner's permission or licence, that entry cannot amount to trespass

Court orders

#
  1. 1.The Plaintiffs' Application dated 24th September, 2013 is dismissed
  2. 2.Costs of the application awarded to the Defendant

Authorities

#

Legislation

  • Constitution of KenyaArticle 40
  • Registration of Titles Act (repealed)Section 23
  • Law of Contract ActSection 3(3)
  • Physical Planning ActNot specified (enforcement notices)

Cases cited (4)

  • Locabail International Finance Ltd. -Vs- Agro Expert and Others
    (1986) 1 ALL E.R. 901
  • Mucuha -Vs- Ripples Limited
    (1990-1994) EA 388
  • Canadian Pacific Railway -Vs- Gaud
    (1949) 2 KB 239
  • Shepheard Homes -Vs- Sandhan
    (1970) 3 WLR 348
Jurisdiction invoked
Original civil jurisdiction over land disputes (injunctive relief under land law and civil procedure; Article 40 of the Constitution and section 23 of the Registration of Titles Act cited by Plaintiffs)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mohamed Abdalla A Shikely & 8 others v Mohamed Abdalla Salim [2014] KEELC 303 (KLR)", Case Analysis (2014). Not stated in judgment (Notice of Motion dated 24th September, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/303/eng@2014-06-20

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