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ELCPartially Allowed· [2018] KEELC 45 (KLR)

Said Suleiman Said v Francis Wanjohi Ngang & 2 others [2018] KEELC 45 (KLR)

Environment and Land Court
14 June 2018
1,656 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered owner of Sub-division No. 572/2 Section III Mainland North (CR. No. 57684) and LR No. 5737 Section III Mainland North (CR. No. 52171), moved the court by amended Notice of Motion under Order 40 Rules 1(a), 3 and 9 of the Civil Procedure Rules and Sections 3A, 1A and 1B of the Civil Procedure Act, seeking a temporary injunction restraining further construction on the property and a mandatory injunction compelling demolition of structures already erected. The Plaintiff purchased the property from Sammy Musembi Munyao, with transfer registered on 15 July 2016, and alleged the 1st Defendant unlawfully entered the land in July 2017 and commenced construction. The Defendants opposed, claiming the 1st Defendant was allotted the property in 1997, took possession and sold it to the 2nd and 3rd Defendants, and that damages would suffice. They also filed a preliminary objection on territorial jurisdiction, contending the property in Mtwapa, Kilifi County, falls within the Malindi court's limits, and that the 1st Defendant was wrongly sued having transferred the property in 2012. The court dismissed the preliminary objection, holding that Mtwapa lies on the county border closer to Mombasa, that Article 159(d) counsels against procedural technicality, and that the 1st Defendant is a necessary party. Applying Giella v Cassman Brown, the court found a prima facie case with probability of success, irreparable injury not compensable by damages, and the balance of convenience favouring preservation of the property. It granted the temporary injunction but declined the mandatory demolition order, with costs of the application abiding the outcome of the main suit.

Key legal issues

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01

Territorial jurisdiction - whether the suit should have been filed in Malindi since the property is in Mtwapa, Kilifi County

Holding

The objection fails; Mtwapa is on the border of Kilifi and Mombasa Counties, closer to Mombasa than Malindi, and no prejudice was demonstrated.

Reasoning

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.

p. 3
02

Whether the 1st Defendant was wrongly sued after transferring the property

Holding

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.

Reasoning

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.

p. 3
03

Whether the Plaintiff met the Giella threshold for a temporary injunction

Holding

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.

Reasoning

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.

p. 3
04

Whether a mandatory injunction to demolish the structures should issue

Holding

No - declined at the interlocutory stage.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1(a), 3 and 9
  • Civil Procedure ActSections 3A, 1A, 1B
  • Civil Procedure ActSection 12(d)
  • Constitution of KenyaArticle 159(d)

Cases cited (7)

  • Giella –versus– Cassman Brown And Co. Ltd
    (1973) EA 358
  • Mrao Limited –versus– First American Bank of Kenya Ltd and 2 Others
    (2003) KLR 125
  • Mara North Holdings Ltd –versus– Sanaeot Ole Masek & 4 Others
    (2015) eKLR
  • Flex Construction Solutions Ltd –versus– Verandel Court Ltd
    (2012) eKLR
  • Suleiman –versus– Amboseli Resort Ltd
    (2004) 2 KLR 589
  • Richard Birir Bwogo –versus– Phibian Chepkoech Mibei & Another
    Kisu HC, Civil Case No. 51 of 2010
  • Kenleb Cons Limited –versus– New Gatitu Service Station And Another
    (1990) KLR 557
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

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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 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.