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ELCPartially AllowedNotice of Motion dated 21st December 2016 (suit undisclosed in judgment text)· [2017] KEELC 2316 (KLR)

Fadhili Zahran Mohamed & another v Aliya Ahran Mohamed & another [2017] KEELC 2316 (KLR)

Environment and Land Court of Kenya
30 March 2017
1,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Mombasa court stopped a trustee's grandson from managing family Islamic trust land pending trial, ruling a power of attorney cannot be re-delegated to a non-beneficiary.

What this practically means

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Executive summary

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By a Notice of Motion dated 21st December 2016, the plaintiffs, beneficiaries of the Wakf of the late Mwanamishi Binti Aziz Bin Juma, sought interim restraints against the 1st defendant, the sole trustee and fellow beneficiary, and the 2nd defendant, her grandson. The plaintiffs held a limited power of attorney from the 1st defendant to act for her in Business Premises Rent Tribunal Case No. 24A of 2015 concerning rent over plot No. MOMBASA/Block XXXVII/13. The 1st defendant revoked that power of attorney by a document drawn by M/s Obara and Obara Advocates, the tenant's advocates in the Tribunal case, and donated a general power of attorney to the 2nd defendant, who then took over management of the Wakf property including a vacated shop. The plaintiffs argued the revocation was void for conflict of interest and was intended to defeat the Tribunal case and to introduce a new trustee through the backdoor. The defendants countered that the revocation was within the 1st defendant's rights and that the 2nd defendant merely assists her. The court framed a single issue: whether the plaintiffs had satisfied the conditions for an interlocutory injunction. Applying Giella v Cassman Brown, the court found a prima facie case on a balance of probability, noted the unrebuted fact that the 2nd defendant is not a beneficiary, applied the Waithaka v ICDC exception that injunctions may issue despite adequate damages where the opponent acted high-handedly, and found the balance of convenience favoured the plaintiffs. The court granted prayers (4) and (5) restraining reliance on the revocation and restraint of the 2nd defendant from dealing with the Wakf pending trial, with costs in the cause.

Key legal issues

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01

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

Holding

A prima facie case was established on a balance of probability given the unchallenged fact that the 2nd defendant is not a beneficiary yet was placed in management of the Wakf property

Reasoning

The parties agreed the 1st defendant is trustee and the plaintiffs beneficiaries of the Wakf. The 1st defendant revoked the plaintiffs' power of attorney and empowered the 2nd defendant, a grandson who is not a beneficiary, to manage the Wakf property. The revocation was drawn by an advocate acting for the opposing tenant in the Tribunal proceedings, and the 1st defendant did not explain why the plaintiffs were sidelined. These unrebuted facts satisfied the Giella threshold.

p. 3
02

Whether the plaintiffs would suffer irreparable damage not compensable by damages

Holding

The case falls within the exceptional rule where an injunction may issue despite damages being adequate, because of the high-handed conduct and the peculiar nature of a dispute over Wakf property

Reasoning

Relying on Waithaka v ICDC, the court applied the exception that injunctions may issue even where damages would suffice, where the opponent acted in a high handed and oppressive manner. The peculiar nature of the dispute over Wakf property, in which the plaintiffs and 1st defendant are beneficiaries but the 2nd defendant is not, brought the case within that exception.

p. 3
03

Balance of convenience

Holding

The balance of convenience tilts in favour of the plaintiffs

Reasoning

Failure to grant the injunction pending trial would amount to the court sanctioning the legitimacy of the 1st defendant's revocation of the power of attorney before the matter is determined at full trial; the balance therefore favours maintaining the status quo pending hearing.

p. 3

Legal principles established

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  • Where damages would be an adequate remedy, an injunction can still issue where the opponent has acted in a high handed and oppressive manner
  • Delegated authority cannot be re-delegated; a trustee's delegated power cannot permit the appointment of another trustee through a power of attorney

Court orders

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  1. 1.Prayer (4): pending the hearing and determination of the suit, the defendants personally or through their employees, servants and/or agents restrained from relying on the revocation of power of attorney dated 1st July 2016
  2. 2.Prayer (5): pending the hearing and determination of the suit, the 2nd defendant restrained from dealing with the affairs of the Wakf of the late Mwanamishi Binti Aziz Bin Juma including taking possession, leasing or dealing with the shops on plot No. MOMBASA/Block XXXVII/13
  3. 3.Costs shall be in the cause

Authorities

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Cases cited (2)

  • GIELLA –VS- CASSMAN BROWN
    (1973) EA 358
  • WAITHKA –VS- INDUSTRIAL AND COMMERCIAL DEVELOPMENT CORPORATION
    (2001) KLR
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory injunctions pending trial (court not expressly stated in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fadhili Zahran Mohamed & another v Aliya Ahran Mohamed & another [2017] KEELC 2316 (KLR)", Case Analysis (2017). Notice of Motion dated 21st December 2016 (suit undisclosed in judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2316/eng@2017-03-30

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