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ELCDismissedNot stated in the judgment· [2015] KEELC 784 (KLR)

Abdulllahi Isak Idow v Habiba Huka Gedo & Bakasi Enterprises Ltd (Environment & Land Case 568 of 2014) [2015] KEELC 784 (KLR)

High Court of Kenya
15 May 2015
MGMary M. Gitumbi
1,539 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to stop property dealings because the buyer's documents didn't clearly match the land he claimed, showing paperwork must precisely identify what you bought.

What this practically means

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Executive summary

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This ruling of the High Court at Nairobi (Gitumbi J) determines a Notice of Motion dated 9th May 2014 in which the Plaintiff, Abdullahi Isak Idow, sought a temporary injunction restraining the Defendants from trespassing on, transferring, building on, developing, wasting, alienating or dealing with Plot No. 41 (Original Number 43) within L.R. Nos. 25513, 25514, 25515, 25521, 25522 and 25529, Embakasi, Pipeline Estate. The Plaintiff claimed to have purchased the property from the 2nd Defendant for Kshs. 267,000/- under an Agreement for Sale dated 1st April 2005 and to have been in possession for over nine years. The 1st Defendant, his ex-wife, denied the purchase, asserting she bought the same property from the 2nd Defendant for Kshs. 270,000/- under an agreement dated 1st August 2005 and holds a Certificate of Ownership issued on 20th February 2010; she claims possession and ongoing construction. Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao v First American Bank, the court found the Plaintiff's documents defective: his Sale Agreement referred to 'Plot No. OC8' under different L.R. numbers and named two individuals as registered owners with no explained link to Bakasi Enterprises Ltd, and his Certificate of Ownership appeared to have been obtained after filing suit. The description of the suit property itself was found confusing. Concluding there was no prima facie case with probability of success, and applying Afraha Education Society on the sequential nature of the Giella test, the court declined to consider irreparable harm or balance of convenience and dismissed the application with costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

No. The documents relied on (Sale Agreement and Certificate of Ownership) did not clearly identify the suit property or link Bakasi Enterprises Ltd to the registered owners named, so no prima facie case was made out

Reasoning

The Plaintiff's Sale Agreement referred to 'Plot No. OC8' with different L.R. numbers and named Amin Sherali Mawani and Asmat Amani Mawan as registered owners, with no explanation of their relationship to Bakasi Enterprises Ltd. His Certificate of Ownership appeared to have been obtained after filing suit. Both parties claimed under the same vendor with conflicting documents, leaving the court in doubt as to the applicant's right.

p. 3
02

Whether the court should proceed to the other Giella conditions once the first fails

Holding

No; the enquiry is sequential and failure on the first ground disposes of the application

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society, the court held the Giella test is sequential, so where the applicant fails to prove a prima facie case with probability of success, the court need not consider irreparable injury or balance of convenience.

p. 3

Legal principles established

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  • The Giella v Cassman Brown conditions for an interlocutory injunction are applied sequentially; the second condition is only addressed if the first (prima facie case) is satisfied

Court orders

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  1. 1.The Notice of Motion dated 9th May 2014 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Cases cited (3)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Mrao versus First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
Jurisdiction invoked
Original civil jurisdiction of the High Court (interlocutory application in a pending suit)

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, "Abdulllahi Isak Idow v Habiba Huka Gedo & Bakasi Enterprises Ltd (Environment & Land Case 568 of 2014) [2015] KEELC 784 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/784/eng@2015-05-15

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