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ELCPartially AllowedNotice of Motion dated 12th May, 2017 (in pending suit)· [2017] KEELC 225 (KLR)

Mohamed Naaman Aly (As trustee of the Wakf properties of Ali Bin Mohamed Ali Muses Mohamed) & 2 others v Islamic Foundation [2017] KEELC 225 (KLR)

Environment and Land Court
14 December 2017
LKL. Komingoi
1,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Mombasa stopped a defendant from building on disputed wakf land, confirming that an application dismissed for want of prosecution is not res judicata.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (L. Komingoi, J) determined a Notice of Motion dated 12th May 2017 brought by the Plaintiff, trustees of the Wakf properties of Ali Bin Mohamed Alias Muses Mohamed, proprietor of Title No. CR/57292/5. By consent of 19th September 2017, prayers 1 to 5 (joinder of co-trustees as co-plaintiffs and amendment of the plaint) were allowed, leaving only prayer 6 - a temporary injunction restraining the Defendant from constructing on, developing or interfering with the title - for determination on written submissions. The Defendant opposed, contending it owned fifty acres lawfully excised from the plot by an instrument dated 23rd March 2009, on which it had constructed an Islamic institution, and that no encroachment beyond the fifty acres had been proved. The court framed two issues: whether the application was res judicata given an earlier, similar motion dismissed for want of prosecution, and whether the Plaintiff met the threshold for a temporary injunction. Holding that a dismissal for want of prosecution is not a hearing on the merits, the court found the application was not barred. Applying the Giella v Cassman Brown principles, it found a prima facie case on the Wakf deed and title deed, irreparable harm from continuing trespass depriving the Wakf and beneficiaries of the land, and balance of convenience favouring the registered proprietors. The injunction was granted pending trial, with costs in the cause.

Key legal issues

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01

Res judicata

Holding

The application is not res judicata because the earlier application of 11th August 2016 was dismissed for want of prosecution without being heard on its merits.

Reasoning

The court noted the record of 1st December 2016 showed the earlier Notice of Motion was dismissed for want of prosecution with no orders as to costs, and that it was never argued. Applying the principle that res judicata requires a matter to have been heard and finally decided, the court held that a dismissal for want of prosecution involves no judicial determination on the merits, so the doctrine cannot bar the present application.

p. 2
02

Temporary injunction

Holding

The application satisfied all three Giella conditions and an injunction was granted restraining the Defendant from constructing on or interfering with Title No. CR.57292/5 pending the hearing and determination of the suit.

Reasoning

The Plaintiffs held title by virtue of the Wakf deed and attached a copy of the title deed, establishing a prima facie case with probability of success. Continued trespass by the Defendant deprived the Wakf and its beneficiaries of the use of the land, constituting irreparable harm not adequately compensable in damages. The balance of convenience favoured the registered proprietors over a Defendant claiming only fifty acres, and preservation of the suit land was necessary pending trial.

p. 3

Legal principles established

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  • An application dismissed for want of prosecution is not heard on its merits and does not render a subsequent application res judicata.
  • The Giella v Cassman Brown principles govern the grant of temporary injunctions: prima facie case, irreparable injury not compensable in damages, and balance of convenience.

Court orders

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  1. 1.That the Defendant, its employees, servants or agents or any other persons acting on their behalf and upon their mandate or instruction be restrained from constructing on the property, extending their buildings or otherwise in any manner whatsoever interfering with Title No. CR.57292/5 until the hearing and determination of this suit.
  2. 2.Costs of this application be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 & 2
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 1 Rules 1, 9 and 10
  • Civil Procedure ActSections 1A, 1B & 3A

Cases cited (3)

  • Anaj Warehousing Limited –versus- National Bank of Kenya
    HCCC No. 311 of 2000
  • Mayungu Limited t/a Kiarie Kariuki –versus- Municipal Council of Malindi
    HCCC No. 13 of 2005
  • Giella –versus- Cassman Brown And Company Limited
    (1973) EA 358
Jurisdiction invoked
Order 40 Rules 1 & 2, Order 8 Rule 3, Order 1 Rules 1, 9 and 10 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act

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 Naaman Aly (As trustee of the Wakf properties of Ali Bin Mohamed Ali Muses Mohamed) & 2 others v Islamic Foundation [2017] KEELC 225 (KLR)", Case Analysis (2017). Notice of Motion dated 12th May, 2017 (in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/225/eng@2017-12-14

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