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ELCPartially AllowedNot stated in the judgment as provided· [2015] KEELC 823 (KLR)

Mohamed Ali Gulled v Olad Abdikhaliq & 2 others [2015] KEELC 823 (KLR)

High Court of Kenya
25 September 2015
2,623 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling by the High Court (Nairobi), delivered by Mary M. Gitumbi J on 25th September 2015, determined two competing Notices of Motion concerning shop number A09 in Towhid Shopping Complex, Eastleigh, Nairobi. The Plaintiff, Mohamed Ali Guleed, sought a temporary injunction restraining the Defendants from locking the shop, evicting him, or interfering with his possession, claiming he had been a tenant paying Kshs. 10,000/- monthly rent since September 2013, having allegedly purchased the premises from one Yussuf Mohamed Ahmed. The 1st Defendant, Olad Abdikhaliz, sought discharge of interim orders granted on 17th January 2014, a temporary injunction in his favour, and a mandatory injunction restoring the status quo and delivering vacant possession to him, claiming he had been a protected tenant since January 2008. The 3rd Defendant, the manager of the complex, supported the Plaintiff's position. Applying Giella v Cassman Brown and Mrao v First American Bank, the court held the Plaintiff had a prima facie case with high chances of success, that damages would not adequately compensate him, and that the balance of convenience favoured his continued occupation. The court applied Locabail International v Agro Export to decline the mandatory injunction sought by the 1st Defendant. The First Application was allowed and the Second Application dismissed; costs were ordered to be in the cause.

Key legal issues

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01

Whether the Plaintiff or the 1st Defendant established a prima facie case with a probability of success

Holding

The Plaintiff established a prima facie case with high chances of success; the 1st Defendant did not

Reasoning

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.

p. 4
02

Whether damages would be an adequate remedy for the Plaintiff

Holding

Damages would not suffice

Reasoning

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.

p. 4
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the Plaintiff, who should remain in occupation pending trial

Reasoning

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.

p. 4
04

Whether a mandatory injunction should issue in favour of the 1st Defendant

Holding

Mandatory injunction declined; the Second Application was dismissed

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The First Application (Notice of Motion dated 16th January 2014) is allowed
  2. 2.The Plaintiff is allowed to continue to remain in occupation of the suit premises pending the hearing and determination of the suit
  3. 3.The Second Application (Notice of Motion dated 29th January 2014) is dismissed
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 2

Cases cited (4)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Niaz Mohamed Jan Mohamed versus The Commissioner of Lands
    (1996) eKLR
  • Locabail International versus Agro Export
    (1986) 1 ALLER 901
Jurisdiction invoked
Original civil jurisdiction of the High Court over the suit and interlocutory applications (no specific provision cited in the judgment)

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, "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.