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ELCPartially AllowedNotice of Motion dated 25th November 2016· [2017] KEELC 757 (KLR)

Hellen Mukami v Dorina Atieno Amollo & another [2017] KEELC 757 (KLR)

Environment and Land Court
6 December 2017
2,047 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court protected a registered landowner from trespassers but refused to order demolition of their buildings before a full trial.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (C. Yano, J) on a Notice of Motion dated 25th November 2016 by the Plaintiff, Hellen Mukami, seeking a temporary injunction restraining the Respondents from interfering with, developing or trespassing on plots No. MN/11/3243 CR33607 and CR 40005, an order for demolition of structures allegedly erected by the Respondents, and police enforcement of that order. The Plaintiff averred she purchased and was registered as proprietor of the plots, was servicing a charge to Housing Finance Company Limited, and was paying rates to the County Government of Mombasa. The Respondents were served but filed no response, so the application was unopposed. Applying the Giella v Cassman Brown principles, the court found the Plaintiff had demonstrated a prima facie case with probability of success by producing title documents, that irreparable loss was likely as the Defendants would continue altering the plots, and that the balance of convenience favoured the registered owner. It therefore granted prayer 2, a temporary prohibitory injunction. However, it declined prayer 3 (demolition), holding it was in the nature of a mandatory injunction that would grant final relief at the interlocutory stage; relying on Kenya Breweries v Washington Okeyo, Locabail, Shepherd Homes and related Court of Appeal authority, it found the case not clear enough for such relief, the Defendants' claim remaining unknown. Prayers 3 and 4 were not granted. Costs of the application were granted to the plaintiff.

Key legal issues

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01

Whether the Applicant met the Giella test for a temporary prohibitory injunction

Holding

Yes - the Plaintiff, as registered owner with title documents, established a prima facie case with probability of success, potential irreparable loss, and the balance of convenience favoured her

Reasoning

The Plaintiff produced title documents and certificates of title showing she is the registered owner of the suit properties. The Defendants were served but filed no response, so their claim was unknown. Under Sections 24, 25(1) and 26(1) of the Land Registration Act, her title is prima facie and indefeasible. Refusal of the injunction would let the Defendants continue altering the plots, causing irreparable loss.

p. 3
02

Whether a temporary mandatory injunction for demolition should issue at the interlocutory stage

Holding

No - the case was not unusually strong and clear; the demolition order would dispose of the suit substantially at the interlocutory stage

Reasoning

Prayer 3 sought demolition of structures, which is in the nature of a mandatory injunction. Applying the principles in Kenya Breweries v Washington Okeyo, Locabail and Shepherd Homes, such relief is granted only in clear cases and with a high sense of assurance. The Defendants were in possession, their claim unknown, and their circumstances of entry unclear. Granting demolition would amount to final relief before trial, so it was declined.

p. 4

Legal principles established

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  • A temporary mandatory injunction will not normally be granted on an interlocutory application in the absence of special circumstances, and only in clear cases; a higher standard of assurance is required than for a prohibitory injunction
  • An interlocutory order which grants a major part of the relief claimed in the suit ought not to be granted at the interlocutory stage
  • A registered proprietor is entitled to protection of the law under the Land Registration Act, the title being prima facie evidence of absolute and indefeasible ownership

Court orders

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  1. 1.Temporary injunction restraining the 1st and 2nd Respondents by themselves, their agents and/or servants from further interfering, meddling, erecting, developing, and/or trespassing into the Applicant's plots No. MN/11/3243 CR33607 and CR 40005 pending hearing and determination of the suit
  2. 2.Prayers 3 and 4 of the Notice of Motion not granted
  3. 3.Costs of the Application granted to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 28

Cases cited (6)

  • Giella –vs- Cassman Brown & Co Ltd
    (1973) EA 358
  • Kenya Breweries Ltd & Another –vs- Washington Okeyo
    (2002) eKLR
  • Locabail International Finance Ltd –v- Agro Export & Others
    (1986) 1 ALL ER 901
  • East African Five Spinners Ltd (In Receivership) & 3 Others –vs- Bedi Investments Ltd
    Civil Appln. Nai 72 of 1994 (UR)
  • Shepherd Homes Ltd –vs- Sandalim
    (1971) 1 CH 34
  • Kenya Airport Authority –vs- Paul Njogu Muigai & 2 Others
    Civil Application NAI 29/97 (UR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes in Mombasa County

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, "Hellen Mukami v Dorina Atieno Amollo & another [2017] KEELC 757 (KLR)", Case Analysis (2017). Notice of Motion dated 25th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/757/eng@2017-12-06

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