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ELCDismissedNotice of motion dated 22nd January 2015 (suit relating to Plot Number MN/6263)· [2015] KEELC 124 (KLR)

Maselina Kazungu Baya & 2 Others v Hussein Ahmed Nazerali & 6 Others [2015] KEELC 124 (KLR)

Environment and Land Court
30 October 2015
AOAnne Omollo
1,497 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court refused to stop the transfer of Plot MN/6263 because the applicants failed to prove they occupied it or had a strong case.

What this practically means

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Executive summary

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The plaintiffs, claiming to have occupied Plot MN/6263 for over 20 years and to have acquired it by adverse possession, moved the court by notice of motion dated 22nd January 2015 seeking to prohibit and enjoin the registered owners from transferring, dealing with or interfering with their occupation pending determination of the suit. The application was anchored on the Civil Procedure Act, the Civil Procedure Rules and the Land Registration Act. The 4th respondent deposed that he purchased the land, found only a handful of occupants without permanent structures, agreed relocation modalities with them, and had financed the purchase through an overdraft. The Land Registrar Mombasa confirmed the transfers into the respondents' names were properly executed and registered. In a further affidavit the 3rd applicant alleged the occupants were threatened into signing a relocation agreement and that the respondents' affidavits were procured to defeat the adverse possession claim. Applying the Giella v Cassman Brown principles, the court held the applicants failed to show a prima facie case: no specific dates of entry were given, occupation could not be adverse to an owner unaware of it, and the applicants' own pleadings showed they were no longer in occupation. Irreparable loss was not established since the relocation agreement made any loss compensable, and the balance of convenience favoured the respondents who had offered resettlement. The motion was dismissed with costs abiding the outcome of the suit.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

No prima facie case was established; the applicants' own pleadings showed they were not in occupation and their claim of adverse possession was unsupported by specific dates of entry

Reasoning

The applicants gave no specific dates of entry and admitted the 1st defendant had never been on the land, undermining adverse occupation against a registered owner. The 3rd applicant's own averments showed his structure had been demolished and he had not stated when he returned, indicating current non-occupation.

p. 3
02

Irreparable loss and balance of convenience

Holding

Loss was compensable and the balance of convenience favoured the respondents who had offered resettlement

Reasoning

The applicants signed annexure 'B' agreeing to vacate upon facilitation, suggesting any interest held a value capable of estimation. The agreement gave alternatives for resettlement, so loss was not irreparable, and the balance of convenience tilted toward the respondents who offered to resettle them elsewhere.

p. 3

Legal principles established

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  • The first and key principle for granting an injunction is that the applicant must show a prima facie case with a probability of success

Court orders

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  1. 1.The notice of motion dated 22nd January 2015 is dismissed
  2. 2.Costs to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rules 1 and 40
  • Civil Procedure ActSections 3A and 63(e)
  • Land Registration ActSections 68(a) and 80

Cases cited (1)

  • Giella vs Cassman Brown
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act; Order 51 rules 1 and 40 of the Civil Procedure Rules; Sections 68(a) and 80 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maselina Kazungu Baya & 2 Others v Hussein Ahmed Nazerali & 6 Others [2015] KEELC 124 (KLR)", Case Analysis (2015). Notice of motion dated 22nd January 2015 (suit relating to Plot Number MN/6263). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/124/eng@2015-10-30

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