Zeinab Ahmed Mohamed v Fadhili Zahra Mohamed & 2 others [2017] KEELC 2291 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
She did not; issues of illegality, want of Wakf Commissioners' consent and non-consultation of beneficiaries required full trial scrutiny
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.
Whether the plaintiff would suffer irreparable harm not compensable by damages
No; any loss was quantifiable in damages
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.
Where the balance of convenience lies
It tilts in favour of the defendants as beneficiaries of the suit premises
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 7th December 2016 is dismissed with costs to the defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.