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ELCDismissedNot stated in the judgment· [2017] KEELC 3206 (KLR)

Salim Yahya Abdalla v Abed General Furniture and Construction Limited & 2 others [2017] KEELC 3206 (KLR)

Environment and Land Court of Kenya
12 April 2017
1,094 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a neighbour's bid to stop a Mombasa showroom because speculation and photos are not enough to win interim orders.

What this practically means

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Executive summary

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The applicant/plaintiff moved the Environment and Land Court at Mombasa by notice of motion dated 18th November 2015 seeking, pending the hearing of his suit, a temporary injunction restraining the 1st defendant/respondent and its directors, developers, contractors, tenants, lessees or licensees from erecting or continuing to erect a commercial structure on sub-division IMN/1282, and orders compelling the 2nd and 3rd defendants to compile and file Assessment and Evaluation Reports on the suitability of the structure before issuing licences. The applicant also urged the court to order demolition of a wall alleged to encroach on Impala Road. The application was supported by his affidavit and further affidavit and opposed by all three respondents through replying affidavits. Only the applicant and the 1st defendant filed written submissions; the 1st defendant relied on the fact that it had obtained all requisite approvals and permits, was not building a factory, and cited Giella v Cassman Brown and Joyce Mukubi v Equity Building Society & Another. The court held that the applicant had not demonstrated a prima facie case, irreparable harm, or that the balance of convenience favoured him. The 1st defendant had sworn it would use the premises only as a showroom, the applicant had earlier signed a questionnaire confirming the project was a furniture showroom, and licences had been issued by the 2nd and 3rd respondents consistent with the county's development plan. The prayer for demolition amounted to a mandatory injunction unsupported by satisfactory evidence. The application was dismissed with no order as to costs on 12th April 2017.

Key legal issues

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01

Whether a temporary injunction could be granted restraining the 1st defendant from using the premises as a factory

Holding

No - the 1st defendant swore on oath that it is not using and has no intention of using the premises as a factory, and the applicant's only fear was futuristic

Reasoning

The applicant's own pleadings showed the dispute had partially changed: the 2nd and 3rd respondents directed the 1st respondent not to construct a factory, the 1st respondent deposed it would use the premises only as a showroom with its factory in Mtwapa, and the applicant had earlier signed a questionnaire on 28.10.2015 confirming the proposed project was a furniture showroom. His remaining fear that the 1st respondent might later change its mind was speculative and could be addressed in final orders after the substantive hearing.

p. 2
02

Whether a mandatory order for demolition of the wall encroaching on Impala Road could issue at the interlocutory stage

Holding

No - such an order would amount to a mandatory injunction, and the applicant's evidence (a photograph and an internal memo) was insufficient; the issue should be resolved at the substantive hearing or with expert evidence

Reasoning

The court reasoned that a prayer for demolition is in substance a mandatory injunction, yet the applicant had only sought temporary injunction orders. The proof of encroachment consisted solely of photographs and an internal memo, which the court held could not prove encroachment at the interlocutory stage. Counsel was expected to take appropriate steps to avail satisfactory evidence capable of convincing the court.

p. 2
03

Whether the applicant made out the threshold principles for an interlocutory injunction

Holding

No prima facie case, no proof of irreparable loss, and no basis for the orders sought was established

Reasoning

The court applied the classic injunction principles and found they were not satisfied. The 1st respondent had annexed licences issued by the 2nd and 3rd respondents, the applicant's complaint had been addressed before suit through a questionnaire he completed, and the development was consistent with the county's Integrated Strategic Urban Development Plan favouring commercial use along Links Road. No irreparable loss was demonstrated.

p. 3

Legal principles established

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  • In an application for temporary injunction, the applicant must demonstrate either a prima facie case, irreparable harm, or that the balance of convenience tilts in his favour
  • A mandatory injunction (e.g. demolition of a wall) cannot be granted at the interlocutory stage on unsatisfactory evidence such as photographs alone

Court orders

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  1. 1.The application is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Original civil jurisdiction (interlocutory application in a pending suit); specific provision not stated in the judgment

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, "Salim Yahya Abdalla v Abed General Furniture and Construction Limited & 2 others [2017] KEELC 3206 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3206/eng@2017-04-12

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