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ELCPartially AllowedNotice of Motion dated 22nd February 2017 (main suit number not stated in the judgment)· [2017] KEELC 2408 (KLR)

Said Musa Mitsanze & another v Ahmed Bin Omar Bamumin [2017] KEELC 2408 (KLR)

Environment and Land Court
15 June 2017
CYC. Yano
712 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 stopped an attempted eviction, ruling that long, undisputed possession of land as a home justifies protection until the case is fully heard.

What this practically means

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Executive summary

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The plaintiffs, a community who had lived, farmed and resided on Plot No. 364/11/MN in Utange, Mombasa County for over 20 years, moved the court by Notice of Motion dated 22nd February 2017 under sections 3A and 64 of the Civil Procedure Act and Order 40 Rule 10(1)(b) and Order 1 Rule 8 of the Civil Procedure Rules. They sought a temporary injunction restraining the respondent from evicting, demolishing, harassing or interfering with their occupation, first pending the inter-partes hearing and then pending the hearing of the main suit, alleging that the respondent was threatening unlawful eviction in collusion with police officers and had begun demolishing their houses without a court order. The application was unopposed: although served, the defendant neither entered appearance nor filed a response. The court relied on the supporting affidavit of the 1st plaintiff and annexed photographs showing demolitions, heavy machinery, vehicles and armed security personnel, which confirmed the applicants' possession. Applying the Giella v Cassman Brown principles, the court held that undisputed possession established a prima facie case with a probability of success, and that the disruption of family life on land occupied as homes constituted irreparable loss not compensable by damages. The court granted prayer 3 - an injunction pending the hearing of the main suit - to preserve the status quo, and ordered that costs of the application abide the outcome of the main suit. Judgment was delivered on 15th June 2017 by C. Yano J.

Key legal issues

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01

Prima facie case

Holding

Applicants in occupation of the suit property, with no contradicting evidence, established a prima facie case with a probability of success

Reasoning

The supporting affidavit and annexed photographs showed the applicants in possession, with demolitions underway involving heavy machinery, vehicles and armed security personnel. There was no evidence contradicting the applicants' averments that they had lived, farmed and resided on the land for over 20 years. The court held that mere possession settled the Giella threshold of a prima facie case with a probability of success.

p. 3
02

Irreparable loss

Holding

Eviction of families living on the land as their homes constitutes irreparable loss not compensable in damages

Reasoning

The applicants lived on the suit property as their homes, and the respondent had sought the assistance of armed police officers to demolish houses and evict them. The court reasoned that disruption of family life cannot easily be compensated by an award of damages, satisfying the second Giella principle and justifying preservation of the status quo pending trial.

p. 3

Legal principles established

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  • Undisputed possession of land by applicants suffices to establish a prima facie case with a probability of success for an interlocutory injunction
  • Disruption of family life on one's home constitutes irreparable loss not easily compensable by damages

Court orders

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  1. 1.A temporary injunction restraining the respondent, his servants and/or agents from evicting, demolishing, harassing and/or interfering with the plaintiffs' occupation of Plot No. 364/11/MN in Utange, Mombasa County pending the hearing of the main suit (prayer 3 granted)
  2. 2.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 64
  • Civil Procedure RulesOrder 40 Rule 10(1)(b)
  • Civil Procedure RulesOrder 1 Rule 8

Cases cited (1)

  • GIELLA –VS- CASSMAN BROWN
Jurisdiction invoked
Sections 3A and 64 of the Civil Procedure Act and Order 40 Rule 10(1)(b) and Order 1 Rule 8 of the Civil Procedure Rules

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, "Said Musa Mitsanze & another v Ahmed Bin Omar Bamumin [2017] KEELC 2408 (KLR)", Case Analysis (2017). Notice of Motion dated 22nd February 2017 (main suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2408/eng@2017-06-15

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