Said Suleiman Said v Francis Wanjohi Ngang & 2 others [2018] KEELC 45 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Territorial jurisdiction - whether the suit should have been filed in Malindi since the property is in Mtwapa, Kilifi County
The objection fails; Mtwapa is on the border of Kilifi and Mombasa Counties, closer to Mombasa than Malindi, and no prejudice was demonstrated.
Section 12(d) of the Civil Procedure Act requires suits to be filed where the property is situated, but Mtwapa borders both counties and is nearer Mombasa. Guided by Article 159(d) of the Constitution, the court declines to uphold a procedural technicality, and the Defendants showed no prejudice from the matter proceeding in Mombasa.
Whether the 1st Defendant was wrongly sued after transferring the property
The objection fails; the 1st Defendant is a necessary party as he was allocated the plot by the Government of Kenya and the pleadings were amended.
The court found the objection watered down by the amendments to the plaint and Notice of Motion. Since the 1st Defendant claims he was allocated the plot by the Government of Kenya, he is a necessary party to the proceedings determining competing title claims.
Whether the Plaintiff met the Giella threshold for a temporary injunction
Yes - the Plaintiff, registered owner who purchased for valuable consideration, established a prima facie case, irreparable injury not compensable by damages, and the balance of convenience favours preservation of the property.
The Plaintiff is the registered owner, having purchased and had the transfer registered on 15 July 2016. Both parties claim the same parcel, but at interlocutory stage the Plaintiff's registered title established a prima facie case with probability of success; continued construction would cause irreparable injury not compensable by damages, and justice favours preserving the suit property pending trial.
Whether a mandatory injunction to demolish the structures should issue
No - declined at the interlocutory stage.
Both parties assert genuine title, and how each acquired title can only be determined at trial with evidence and cross-examination. Ordering demolition before trial would not serve the interests of justice, so prayer (4) was refused while the prohibitory injunction was granted.
Legal principles established
#- An applicant for an interlocutory injunction bears the onus of satisfying the court, on evidence and sound legal principles, of the Giella conditions.
- To succeed on an injunction application, an applicant must make full and frank disclosure and show a legal or equitable right requiring protection.
Court orders
#- 1.A temporary injunction restraining the Defendants/Respondents, their agents, assigns, employees and/or representatives from further constructing, erecting, building, interfering with and/or otherwise tampering with the Plaintiff's/Applicant's Sub-division No. 572/2/Section III/Mainland North CR. No. 57684 and Land Reference No. 5737/Section III/Mainland North CR. No. 52171.
- 2.Costs of the application to abide the outcome of the main suit.
- Jurisdiction invoked
- Order 40 Rules 1(a), 3 and 9 of the Civil Procedure Rules 2010; Sections 3A, 1A and 1B of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Suleiman Said v Francis Wanjohi Ngang & 2 others [2018] KEELC 45 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/45/eng@2018-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.