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ELCPartially AllowedNotice of motion dated 6th September 2016 (ELC suit, Mombasa)· [2017] KEELC 3245 (KLR)

Bahati Properties Limited v Attorney General & 7 others [2017] KEELC 3245 (KLR)

Environment and Land Court
11 April 2017
1,542 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 refused to evict rival titleholders before trial but ordered the disputed Diani Beach property preserved until the case is fully heard.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of leasehold interest in L.R Kwale/Diani Beach/59, moved the Environment and Land Court at Mombasa by notice of motion dated 6th September 2016 seeking to restrain the respondents from alienating, selling, transferring or dealing with Kwale/Diani Beach/149, and seeking orders that the 2nd to 7th respondents vacate and be restrained from entering, developing or wasting the property. The plaintiff claimed both parcels refer to the same ground, that it was in possession until 25th August 2016 when its caretaker and staff were evicted with police assistance, and that the respondents were resorting to extra-judicial means to steal a match. The respondents, through Said M. Mabavu, asserted family ownership and government allotment of plot 149, denied any invasion, and contended that plot 59 ceased to exist after re-survey in 1975 and that the plaintiff's lease lapsed in 1994. The court found both sides held certificates of lease over the same ground per the survey report, that possession before suit was disputed (the staff affidavits suggesting non-residence), and that the applicant knew of the respondents' title as early as 2014. Applying the principle that interlocutory mandatory injunctions issue only in clear cases or where the defendant has stolen a match, the court declined the mandatory injunction. However, it allowed prayer (7), preserving the suit property pending hearing and determination of the suit, with each party bearing its own costs of the application.

Key legal issues

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01

Whether an interlocutory mandatory injunction should issue on the facts

Holding

No - the facts do not meet the threshold; the case is not clear and possession is disputed

Reasoning

The court noted both sides hold competing certificates of lease over the same ground per the survey report. Possession before filing was also disputed: the applicant's own staff affidavits suggested they were not residents on the premises, so eviction did not apply. The applicant also knew of the respondents' title as early as 2014. Such conflicts can only be resolved at a hearing, so the special circumstances required for an interlocutory mandatory injunction are absent.

p. 3
02

What interim protection is appropriate where two titles and possession are in dispute

Holding

The suit property is to be preserved pending hearing and determination of the suit

Reasoning

Since both parties claim title and possession over the same parcel, the court found it prudent to preserve the status quo rather than grant a mandatory or prohibitory injunction. Prayer (7) of the motion was allowed to preserve the property pending trial, with each party bearing its own costs of the application.

p. 3

Legal principles established

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  • A mandatory injunction on an interlocutory application ought not to be granted in the absence of special circumstances, and then only in clear cases or where the defendant attempted to steal a match on the plaintiff
  • Where both sides hold titles over the same parcel, the dispute as to which title is authentic can only be resolved through a hearing
  • Where possession is disputed and two titles compete, the court may order preservation of the suit property pending trial

Court orders

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  1. 1.Prayer (7) of the motion allowed, preserving the suit property pending hearing and determination of the suit
  2. 2.Each party to bear their respective costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 5 Rule 14
  • Civil Procedure RulesOrder 40 Rules 1(a), 3 & 4
  • ELC Actsections 13, 18 & 19

Cases cited (4)

  • Robai Aguja (Kadili Agufa) & Another vs Kenya Power & Lighting Co Ltd (2015) eKLR
    (2015) eKLR
  • Maher Karim vs Edward Oluoch Odumbe (2015) eKLR
    (2015) eKLR
  • Giella vs Cassman Brown
  • Gitway Investment Ltd vs Tajmal Ltd (2006) eKLR
    (2006) eKLR
Jurisdiction invoked
Sections 13, 18 & 19 of the ELC Act; section 3A of the Civil Procedure Act; Order 40 Rules 1(a), 3 & 4 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, "Bahati Properties Limited v Attorney General & 7 others [2017] KEELC 3245 (KLR)", Case Analysis (2017). Notice of motion dated 6th September 2016 (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3245/eng@2017-04-11

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