Mohamed Ali Gulled v Olad Abdikhaliq & 2 others [2015] KEELC 823 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff or the 1st Defendant established a prima facie case with a probability of success
The Plaintiff established a prima facie case with high chances of success; the 1st Defendant did not
Both parties claimed possession, which the court found impossible. The 3rd Defendant, the manager of the complex, confirmed under oath that the Plaintiff had been in occupation since 10th September 2013 upon purchasing the premises from Yussuf Mohamed Ahmed. The 1st Defendant's claim rested on arrangements managed by Yussuf, who was refuted by both the Plaintiff and 3rd Defendant. Contradictory affidavit issues were left to trial, but a prima facie view favoured the Plaintiff.
Whether damages would be an adequate remedy for the Plaintiff
Damages would not suffice
Relying on Niaz Mohamed Jan Mohamed v The Commissioner of Lands, the court held that no amount of money can compensate for infringement of the Plaintiff's right to possession; hence the second Giella condition favoured injunctive relief for the Plaintiff.
Where the balance of convenience lies
The balance of convenience tilts in favour of the Plaintiff, who should remain in occupation pending trial
Following the preliminary finding that the Plaintiff is the party in possession, the court concluded that he should be allowed to continue in occupation pending the hearing and determination of the suit.
Whether a mandatory injunction should issue in favour of the 1st Defendant
Mandatory injunction declined; the Second Application was dismissed
Applying Locabail International v Agro Export, a mandatory injunction on an interlocutory application requires special circumstances and a high sense of assurance that it would be justified at trial. Given the court's finding against the 1st Defendant on prima facie case and balance of convenience, this threshold was not met.
Legal principles established
#- Conditions for grant of an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience where in doubt
- Definition of a prima facie case in civil applications
- A mandatory injunction should not be granted on an interlocutory application absent special circumstances, and the court must feel a high sense of assurance that the injunction was rightly granted
- Damages are not an adequate remedy where the infringement of the right cannot be atoned for in money
Court orders
#- 1.The First Application (Notice of Motion dated 16th January 2014) is allowed
- 2.The Plaintiff is allowed to continue to remain in occupation of the suit premises pending the hearing and determination of the suit
- 3.The Second Application (Notice of Motion dated 29th January 2014) is dismissed
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over the suit and interlocutory applications (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Ali Gulled v Olad Abdikhaliq & 2 others [2015] KEELC 823 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/823/eng@2015-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.