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ELCDismissedNotice of Motion dated 7th December 2016 (Mombasa Environment and Land Court)· [2017] KEELC 2291 (KLR)

Zeinab Ahmed Mohamed v Fadhili Zahra Mohamed & 2 others [2017] KEELC 2291 (KLR)

Environment and Land Court of Kenya
30 March 2017
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, Zeinab Ahmed Mohamed, moved the court by Notice of Motion dated 7th December 2016 under Order 40 Rules 1(a), 3 and 9 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking temporary injunctions restraining the defendants from interfering with her quiet and peaceful occupation of a shop on Plot No. Mombasa/Block XXXVII/13, plus costs. She relied on a lease dated 1st November 2016 with Alye Zahran Mohamed, trustee of the Wakf owning the premises, for 30 years and 3 months from 1st December 2016 at Kshs.45,000 monthly, alleging the defendants invaded the premises on 1st December 2016. The defendants, beneficiaries of the Wakf, opposed through a replying affidavit of the 2nd defendant, contending the lease was a scheme to deprive the Wakf of its property, that beneficiaries were never consulted, that the lease was null and void for want of Wakf Commissioners' consent under section 14 of the Wakf Commissioners Act, and that the plaintiff had not commenced business. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found the plaintiff had not established a prima facie case with probability of success, that any loss was quantifiable in damages, and that the balance of convenience favoured the beneficiaries. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

She did not; issues of illegality, want of Wakf Commissioners' consent and non-consultation of beneficiaries required full trial scrutiny

Reasoning

The court declined to determine contested issues of illegality and validity of the lease on affidavit evidence, holding that resolving them interlocutorily without full facts would be superficial justice. The plaintiff had not commenced business, had only paid one month's rent and a deposit, and the contested validity of the lease meant no apparent infringement of a right was shown.

p. 3
02

Whether the plaintiff would suffer irreparable harm not compensable by damages

Holding

No; any loss was quantifiable in damages

Reasoning

The court found that the inconvenience or loss arising from refusal of the injunction could be quantified in damages, so the second Giella limb failed.

p. 3
03

Where the balance of convenience lies

Holding

It tilts in favour of the defendants as beneficiaries of the suit premises

Reasoning

Considering the facts in totality, including that the plaintiff had not commenced operations and the defendants are beneficiaries of the Wakf, the court found greater harm would fall on the respondents if the injunction issued.

p. 3

Legal principles established

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  • The criteria for grant of interlocutory injunction are the Giella tests: prima facie case with probability of success, irreparable harm not adequately compensable in damages, and balance of convenience if in doubt
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success on trial

Court orders

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  1. 1.The Notice of Motion dated 7th December 2016 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rules 1(a), 3 and 9
  • Wakf Commissioners Act, Cap 109 Laws of KenyaSection 14

Cases cited (2)

  • GIELLA V SCASSMAN BROWN & CO LTD
    (1973) EA 358
  • MRAO LIMITED VS- FIRST AMERICAN BANK OF KENYA LTD
    (2003) KLR 125
Jurisdiction invoked
Order 40 Rules 1(a), 3 and 9 of the Civil Procedure Rules 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, "Zeinab Ahmed Mohamed v Fadhili Zahra Mohamed & 2 others [2017] KEELC 2291 (KLR)", Case Analysis (2017). Notice of Motion dated 7th December 2016 (Mombasa Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2291/eng@2017-03-30

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