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ELCPartially AllowedNotice of Motion dated 19th October 2015 (suit filed 2010)· [2016] KEELC 798 (KLR)

Abdikarin Mohamed Ali & another v Ali Digale Gure & 9 others [2016] KEELC 798 (KLR)

Environment and Land Court
3 June 2016
2,219 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Garissa temporarily barred rivals from touching FIKIR Farm No. 29, but refused to order police enforcement of its decision.

What this practically means

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Executive summary

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This is a ruling on the plaintiffs' Notice of Motion dated 19th October 2015 in a long-running farm dispute over FIKIR/FAKIR FARM No. 29, seeking a temporary injunction restraining the defendants and Hassan Khalif Maraabe (Chief, Jarorot Location, Korakora) from trespassing on, sub-dividing, alienating or dealing with the farm, plus an order for police enforcement. The plaintiffs claimed ownership following an arbitration conducted by the Provincial Administration, and alleged invasions of the farm on 7th and 14th October 2015. The 3rd defendant, Hassan Abdi Maow, opposed, asserting the 1st plaintiff, Abdikarin Mohamed Ali (allegedly deceased in April 2014), was sole proprietor; that the 2nd plaintiff lacked locus and letters of administration; that the defendants belonged to Jarirot Farm Group with their own farm No. 129; and that they never entered the suit farm. Applying Giella v Cassman Brown and Mrao v First American Bank, Olao J found a prima facie case: the defendants' own affidavit recognized the farm's existence and the 1st plaintiff's proprietorship, and a business name registration certificate showed both plaintiffs carrying on business as FIKIR FARM. Non-disclosure of the alleged death did not disentitle the 2nd plaintiff. Correspondence showed the dispute risked degenerating into violence, justifying an injunction in the interest of public tranquility. The prayer directing the OCS Garissa to enforce the order was refused, the court noting the Police's independent statutory duty under Section 24 of the National Police Service Act. The court restrained the respondents and the chief from trespassing on or dealing with the farm pending hearing of the suit, with costs in the cause.

Key legal issues

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01

Whether the plaintiffs established a prima facie case

Holding

Yes - the defendants' own replying affidavit recognized the existence of the suit farm and the 1st plaintiff as its sole proprietor, and the business name registration certificate showed both plaintiffs carrying on business as FIKIR FARM

Reasoning

Neither party held title under the known legal regime, but both farms appeared recognized by the County Council of Garissa. The defendants' affidavit conceded FIKIR existed and that Abdikarin Mohamed Ali was its sole proprietor, while denying interference. The business name certificate dated 29th October 1998 showed both plaintiffs as carrying on business under the name FIKIR FARM. The court made no final findings but held the plaintiffs had established a prima facie case on the material presented.

p. 4
02

Whether the alleged non-disclosure of the 1st plaintiff's death disentitled the 2nd plaintiff to relief

Holding

No - no evidence of the death was produced, and the 2nd plaintiff had come to court in his own capacity as a co-owner

Reasoning

The defendants asserted the 1st plaintiff died in April 2014, meaning the 2nd plaintiff could not have obtained his authority, and that the 2nd plaintiff lacked letters of administration. The court found no evidence of the death was produced, and even if true, the 2nd plaintiff had come in his own capacity as co-owner of the suit farm; the non-disclosure was not such as to disentitle him to the orders, the suit having been filed in 2010.

p. 4
03

Irreparable harm and the public tranquility dimension

Holding

Although the defendants denied entry onto the farm, correspondence showed the long-standing dispute risked degenerating into violence, justifying an injunction in the interest of public tranquility

Reasoning

Letters from 1993 and 2007 to the Provincial Commissioner and District Commissioner evidenced threats to life and fear of a breakdown of law and order over the farm dispute. Citing Mohamed v Commissioner of Lands, the court held that if the defendants were threatening forceful entry through the chief, the plaintiffs would be entitled to a temporary injunction, and the court had a responsibility to arrest the potential conflict.

p. 4

Legal principles established

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  • An application for a temporary injunction is determined on the Giella v Cassman Brown principles: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
  • An interlocutory injunction is an equitable relief and a party approaching the Court must do so with clean hands; the Court takes the course carrying the lower risk of injustice
  • A court may grant a temporary injunction to arrest a land dispute with the potential of degenerating into physical conflict, in the interest of public tranquility
  • The Police have a duty under Section 24 of the National Police Service Act to maintain law and order and do not need a court direction to execute that mandate

Court orders

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  1. 1.The respondents by themselves, servants, agents or any other person claiming under their authority including Hassan Khalif Maraabe the chief Jarorot Location within Korakora Division are restrained from trespassing into, alienating, transferring or in any other way dealing with FIKIR FARM No. 29 or any part thereof pending the hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

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Legislation

  • Registration of Business Names Actnull
  • National Police Service ActSection 24

Cases cited (4)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • MRAO VS FIRST AMERICAN BANK OF KENYA & TWO OTHERS
    C.A CIVIL APPEAL No. 39 of 20002
  • FILMS ROVER INTERNATIONAL VS CANNON FILMS
    1986 3 ALL E.R 772
  • MOHAMED VS COMMISSIONER OF LANDS & FOUR OTHERS
    K.L.R (E & L) 1 Page 217
Jurisdiction invoked
Original civil jurisdiction over the suit farm dispute; interlocutory application under established injunction principles (Giella v Cassman Brown)

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, "Abdikarin Mohamed Ali & another v Ali Digale Gure & 9 others [2016] KEELC 798 (KLR)", Case Analysis (2016). Notice of Motion dated 19th October 2015 (suit filed 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/798/eng@2016-06-03

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