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ELCPartially AllowedNotice of Motion dated 15th September 2016 (suit over plot NUMBER 228/V/MN JOMVU (MAJENGO MAPYA))· [2017] KEELC 2895 (KLR)
Edward Furaha Nzaro v Jamal Salad Abdille [2017] KEELC 2895 (KLR)
Environment and Land Court (or High Court, not specified in judgment)
26 April 2017
745 words in judgment
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·~3 min to read original · ~4 min briefThe bottom line
#A Kenyan court blocked any dealings with a paid-for plot portion, showing documented payment evidence can win urgent land protection.
What this practically means
#Executive summary
#This was an interlocutory Notice of Motion dated 15th September 2016 brought by the plaintiff, Edward Furaha Nzaro, under Order 40 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act, seeking a temporary injunction restraining the defendant, Jamal Salad Abdille, from constructing on, transferring, leasing, subletting or otherwise dealing with a portion measuring 30 feet by 70 feet on plot NUMBER 228/V/MN JOMVU (MAJENGO MAPYA) pending the hearing of the suit. The plaintiff contended he leased the portion, annexing a lease agreement dated 9/9/2014, an RTGS transfer of Kshs.400,000 and a receipt for Kshs.100,000, and that the defendant invaded the property and began constructing a permanent building without consultation. The defendant opposed, asserting the portion had been let to his wife Hawa Dere Mohammed in 2009 at ground rent of Kshs.500 per month. The application was disposed of by written submissions. L. Komingoi J framed two issues: whether the plaintiff made out a good case, and costs. Applying the Giella v Cassaman Brown principles, the court found the defendant's handwritten tenancy note did not describe the portion let and had no evidence of payment. Although both parties would prove their claims at trial, the court found preservation of the property necessary since the plaintiff had paid for the portion. The court granted the temporary injunction as sought and ordered that costs of the application abide the determination of the main suit. Judgment delivered on 26/4/2017.
Key legal issues
#01
Whether the plaintiff made out a case for a temporary injunction over the leased portion of plot 228/V/MN JOMVU
Holding
The plaintiff established a good case; a temporary injunction was granted to preserve the suit property pending trial
Reasoning
Applying Giella v Cassaman Brown, the plaintiff annexed a lease agreement dated 9/9/2014, an RTGS transfer of Kshs.400,000 and a receipt for Kshs.100,000, evidencing payment for the portion. The defendant's handwritten tenancy note to his wife did not describe the portion let and had no evidence of payment. Both parties would have a chance to prove their claims at trial, but preservation was needed pending hearing.
p. 2
Legal principles established
#- The Giella test for temporary injunctions: prima facie case with likelihood of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
- Where a litigant has paid for a portion of land, preservation of the suit property pending hearing may be necessary to avoid prejudice
Court orders
#- 1.Temporary injunction issued against the defendant, his agents, employees and/or third parties from constructing, transferring for sale, leasing, subleasing, letting rent, subletting for rent, charging or otherwise dealing with the portion of land measuring 30 feet by 70 feet on plot NUMBER 228/V/MN JOMVU (MAJENGO MAPYA) pending the hearing and determination of the suit
- 2.Costs of the application to abide the determination of the main suit
- Jurisdiction invoked
- Order 40 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Furaha Nzaro v Jamal Salad Abdille [2017] KEELC 2895 (KLR)", Case Analysis (2017). Notice of Motion dated 15th September 2016 (suit over plot NUMBER 228/V/MN JOMVU (MAJENGO MAPYA)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2895/eng@2017-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.