Abdirashid Abdullali Hussein v Salesion N Kamwara & 2 others [2015] KEELC 526 (KLR)
The bottom line
#A Kenyan court ordered three defendants to vacate a plot the buyer had occupied first, showing earlier possession and purchase can beat later paper titles.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
The Applicant established a prima facie case with probability of success, having purchased plot V10271 (Nairobi/Block 105/1828) in 2006 with the 3rd Defendant's approval and having been in possession since, ahead of the 2nd Defendant's 2009 allocation of plot V10218.
The Plaintiff purchased the plot from Jack Kamau Wachira in June 2006, paid the 3rd Defendant, was shown the beacons and took possession. The 2nd Defendant's certificate for plot V10218 issued in October 2009, three years later, and his sale to the 1st Defendant did not describe the plot as Nairobi/Block 105/1828. The Plaintiff was first in time and in possession, showing infringement of his right to own property.
Irreparable injury/adequacy of damages
Damages would not be an adequate remedy because the Plaintiff bought the plot to build his residential home and the land is of sentimental value and unique.
The Applicant bought the suit plot in 2006 intending to put up his residential home and has been in possession. Following the principle that land is unique and no parcel can be equated to another, the court held damages would not be suitable given the established infringement of his right to property.
Balance of convenience
The balance of convenience tilts in favour of the Plaintiff, who is in possession; the status quo is his possession.
Since the Plaintiff is in actual possession of the suit plot, maintaining the status quo preserves the position pending trial. The court found the status quo is the Plaintiff's possession and that convenience favours him.
Mandatory injunction on interlocutory application
Special circumstances existed warranting a mandatory injunction: the Plaintiff was first in time, in possession since 2006, and the Defendants were attempting to steal a march on him.
Applying Kenya Breweries v Okeyo, the court held a mandatory injunction may issue interlocutorily where the case is clear or the defendant attempts to steal a march. The Plaintiff had been shown the plot by the 3rd Defendant and its surveyor and possessed it since 2006; the 1st and 2nd Defendants were later entries threatening his possession, constituting special circumstances.
Legal principles established
#- Injunctions are equitable remedies granted at the court's discretion, which must be exercised judiciously in accordance with the Giella principles.
- A prima facie case is more than an arguable case; the evidence must show infringement of a right and probability of success at trial.
- Land is unique and no one parcel can be equated in value to another, so damages may be an inadequate remedy in land disputes.
- Where two claims are otherwise equal, the first in time prevails.
- A mandatory injunction may be granted on an interlocutory application in special circumstances, e.g. where the case is clear or the defendant attempted to steal a march.
Court orders
#- 1.Interlocutory injunction restraining the Defendants from trespassing on, transferring, building on or interfering with plot No. V10271 also known as Nairobi/Block 105/1828 pending hearing and determination of the suit
- 2.Mandatory injunction ordering the Defendants to vacate and hand over vacant possession of plot No. V10271 also known as Nairobi/Block 105/1828 pending hearing and determination of the suit
- 3.Costs of the application awarded to the Plaintiff, to be borne by all three Defendants
- Jurisdiction invoked
- Order 40 Rules 1, 2 and 4(1) of the Civil Procedure Rules 2010; Sections 3A, 63(c) and (e) of the Civil Procedure Act; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdirashid Abdullali Hussein v Salesion N Kamwara & 2 others [2015] KEELC 526 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 21st August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/526/eng@2015-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.