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ELCPartially AllowedNot stated in the excerpt (application dated 22nd March 2017)· [2017] KEELC 742 (KLR)

Anastancia Kavisa Joseph Ndunge v Abdalla Salim Said & another [2017] KEELC 742 (KLR)

Environment and Land Court
6 December 2017
AOA. Omollo
570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Mombasa court stopped the defendants from entering or building on a disputed Mtopanga plot until the main land case is decided.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 22nd March 2017 brought by the plaintiff under Order 40 rules 1 & 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a temporary injunction restraining the defendants, Abdalla Salim Said and Nassir Musa Mohamed, from entering, constructing on or otherwise interfering with a portion of plot No. 220/I/MN (Block "B", house No. 056) at Mtopanga, Mombasa, pending determination of the suit. The plaintiff, who had bought a 70 ft x 40 ft portion of the plot, alleged encroachment and a threatened sale of her portion by the 1st defendant to the 2nd defendant, and relied on sale agreements, receipts and approved building plans. The 2nd defendant opposed, contending that the plot comprised several sub-plots with different proprietors identified only by beacons, that the plaintiff was the one attempting to grab his plot, that she came to court with unclean hands given other pending cases, and that she had not met the criteria for an injunction; he also characterised the matter as a boundary dispute for the Land Disputes Tribunal. The court held that the 2nd defendant's acknowledgement of a boundary dispute established a prima facie case with probability of success, and that the Tribunal no longer exists, the court having unlimited jurisdiction under Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act 2011. To preserve the suit property, the court granted the injunction as prayed in prayer (c), with costs of the application to abide the outcome of the main suit.

Key legal issues

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01

Whether the applicant established the criteria for a temporary injunction

Holding

The court found a prima facie case with probability of success and, to preserve the suit property, granted the injunction as prayed.

Reasoning

The applicant showed she purchased a 70 ft x 40 ft portion of plot 220/I/MN, annexing sale agreements, receipts and approved building plans. The 2nd defendant admitted owning a neighbouring portion and acknowledged a boundary dispute, which the court treated as confirmation of a prima facie case. Preservation orders were needed so the suit would not become academic.

p. 3
02

Whether the dispute fell outside the court's jurisdiction as a boundary dispute for the Land Disputes Tribunal

Holding

The objection failed; the Tribunal no longer exists and the court has unlimited jurisdiction over environment and land disputes.

Reasoning

The 2nd defendant argued the dispute was a boundary dispute within the preserve of the Land Disputes Tribunal. The court held that the Tribunal no longer exists and that it exercises unlimited jurisdiction under Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act 2011.

p. 3

Legal principles established

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  • Acknowledgement by a party that there is a boundary dispute demonstrates that the opposing party has established a prima facie case with probability of success.
  • The Environment and Land Court has unlimited jurisdiction to hear and resolve disputes relating to environment and land, the Land Disputes Tribunal having ceased to exist.

Court orders

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  1. 1.A temporary injunction restraining the defendants, Abdalla Salim Said and Nassir Musa Mohamed, by themselves, their agents or servants, from entering, constructing on or in any other manner interfering with parcel No. Block "B" on plot No. 220/I/M.N known as house No. 056 situate at Mtopanga, Mombasa, pending the hearing and determination of the suit
  2. 2.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 & 2
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 162(2)
  • Environment & Land Court ActSection 13
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13 of the Environment & Land Court Act 2011; Order 40 rules 1 & 2 and Section 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, "Anastancia Kavisa Joseph Ndunge v Abdalla Salim Said & another [2017] KEELC 742 (KLR)", Case Analysis (2017). Not stated in the excerpt (application dated 22nd March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/742/eng@2017-12-06

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