Mohamed Abdalla A Shikely & 8 others v Mohamed Abdalla Salim [2014] KEELC 303 (KLR)
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
#Key legal issues
#Whether a mandatory injunction could issue at the interlocutory stage
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.
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.
Whether the Defendant's occupation constituted trespass
The initial entry could not be trespass since the Plaintiffs admitted their father permitted the Defendant onto the land.
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.
Whether the Enforcement Notices under the Physical Planning Act justified demolition orders
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.
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.
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.The Plaintiffs' Application dated 24th September, 2013 is dismissed
- 2.Costs of the application awarded to the Defendant
- 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.