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ELCPartially AllowedNot stated in the judgment (motion dated 8th June 2016; 2nd defendant's application dated 4th May 2016)· [2016] KEELC 401 (KLR)

Vincent Mwango & 2 others v Albert Maonga & another [2016] KEELC 401 (KLR)

Environment and Land Court
4 October 2016
1,783 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa blocked the demolition of homes on a Mombasa plot, ruling occupants deserved a hearing before losing their property.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the Environment and Land Court at Mombasa by notice of motion dated 8th June 2016 under Order 40 Rules 1 and 2 of the Civil Procedure Rules, seeking an injunction to restrain the 1st and 2nd defendants from evicting, demolishing, selling, sub-dividing, charging or otherwise dealing with Plot No. 410/I/MAINLAND NORTH at Mlaleo, off Old Malindi Road, Mombasa, pending the hearing and determination of the suit, plus costs. The 1st applicant deponed that he bought a house on the plot in 1996 with the 1st defendant's consent, had paid ground rents, and feared eviction under an eviction/demolition order obtained without his knowledge. The 1st defendant, who bought the plot in 1976, admitted finding structures on the land but asserted they were built without approval, that the occupiers had undertaken to relocate while paying ground rent (which fell into arrears), and that a demolition order had issued in Municipal criminal case No. M3497 of 2011. The 2nd defendant, through its director of legal services, denied any interest in the property, alleged the suit was an abuse of process, and objected that granting the orders would reverse unappealed criminal court orders. Applying the classic temporary injunction principles, Omollo J found the applicants had a prima facie case, since whether their structures were covered by the demolition order, whether notice was served, and issues of consent and rent arrears were matters for trial; the applicants faced demolition without a hearing. The balance of convenience favoured the applicants, long-standing occupants who had even obtained repair approval. The court distinguished Ahmed Ibrahim v Noor Khamisi Surur (2013) eKLR, cited by the 1st defendant, as there was no undertaking to vacate. The court dismissed the 2nd defendant's plea that it was wrongly sued, noting its officers were to execute the demolition order and the notice emanated from its office. The motion dated 8th June 2016 was allowed in terms of prayers 3 and 4, and the 2nd defendant's application dated 4th May 2016 was dismissed.

Key legal issues

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01

Prima facie case

Holding

Established - the applicants' property is likely to be demolished without a hearing, and contested issues (legality of structures, consent, rent arrears, service of notice) can only be resolved at trial

Reasoning

The court found it not in dispute that the 1st defendant owned the land and that structures existed on it, some predating his 1976 purchase. The demolition order arose from a criminal case in which the 1st defendant was accused, yet the structures did not belong to him. Whether the applicants' structures were covered by the order, whether notice was served, whether consent to occupy was given, and whether ground rents were in arrears were all contested factual matters unfit for determination at interlocutory stage and reserved for full trial.

p. 3
02

Irreparable loss

Holding

Not addressed on the principles - no party addressed the court on irreparable loss compensable only by damages, but the motion succeeded on the prima facie case and balance of convenience limbs

Reasoning

The court noted that none of the parties addressed it on irreparable loss. The applicants merely deponed that the structures were their home and they had nowhere else to go. The 1st defendant wanted to develop the land and the 2nd defendant claimed no interest. The court instead relied on the prima facie case and balance of convenience, finding the latter tilted to the applicants given their long occupation and the 2nd defendant's approval of repairs.

p. 3
03

Balance of convenience

Holding

Tilts in favour of the applicants, who had occupied the land for a very long time and even obtained approval from the 2nd defendant to repair structures

Reasoning

The court observed the applicants had structures on the land for a very long time and that the 1st applicant had obtained approval from the 2nd defendant for repairs. The authority cited by the 1st defendant was distinguished because there was no undertaking to vacate, and the applicants had been paying ground rent to the 1st defendant.

p. 3
04

Whether the 2nd defendant was wrongly sued

Holding

Not wrongly sued - the order causing apprehension was to be executed by its officers, it was the complainant in the criminal proceedings, and the demolition notice emanated from its office

Reasoning

Despite deposing that it had no interest in the suit property, the 2nd defendant simultaneously pressed for demolition of the structures. Its officers were directed to execute the eviction/demolition order and the Chief Building Inspector's notice originated from its office. The court found the application to strike it out inconsistent with that position and dismissed it.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must show a prima facie case with a probability of success, or irreparable loss not compensable by damages, and if in doubt the balance of convenience is considered
  • Occupiers facing demolition of their structures who were not afforded a hearing establish a prima facie case at the interlocutory stage

Court orders

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  1. 1.Application dated 8th June 2016 allowed in terms of prayers 3 and 4
  2. 2.Injunction granted restraining the 1st and 2nd defendants/respondents from evicting, demolishing, selling, sub-dividing, charging or dealing with Plot No. 410/I/MAINLAND NORTH, Mlaleo off Old Malindi Road Mombasa, or dealing with the suit property in any manner detrimental to the plaintiff/applicant until hearing and determination of the suit
  3. 3.Costs of the application to the applicants (prayer 4 allowed)
  4. 4.2nd defendant's application dated 4th May 2016 dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1 and 2

Cases cited (1)

  • Ahmed Ibrahim & Another vs Noor Khamisi Surur
    (2013) eKLR
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules (injunctive relief in a pending land 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, "Vincent Mwango & 2 others v Albert Maonga & another [2016] KEELC 401 (KLR)", Case Analysis (2016). Not stated in the judgment (motion dated 8th June 2016; 2nd defendant's application dated 4th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/401/eng@2016-10-04

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