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ELCDismissedNotice of Motion dated 22nd January 2018 (filed 24th January 2018), within a suit over Plot No. 706 Takaungu· [2018] KEELC 486 (KLR)

Asha Ali Abdalla & another v Mombasa Cement Limited [2018] KEELC 486 (KLR)

Environment and Land Court
14 December 2018
JOJ. O. Olola
1,183 words in judgment
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The bottom line

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The Environment and Land Court in Malindi refused to stop Mombasa Cement from using disputed Takaungu land because the families' ownership claim rested on a cancelled allocation.

What this practically means

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Executive summary

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The Plaintiffs, legal representatives of the estate of Ali Abdalla Mwahunzi, sought an interlocutory injunction restraining Mombasa Cement Ltd from interfering with Plot No. 706 Takaungu, contending the deceased was allocated the plot in 2002 and had lived there since time immemorial. The Defendant countered that the suit land formed part of a 1914 Wakf to the Mazruis; that following the 1989 repeal of the Mazrui Lands Trust Act the land became Trust Land, but the repeal was declared unconstitutional by the High Court in Mombasa Constitutional Petition No. 185 of 1991 on 19th July 2012, reverting the land to the Mazruis and nullifying the Takaungu Adjudication Register; and that the Defendant had leased 1,000 acres from the Mazrui trustees in 2014. Applying the Nguruman and Mrao tests for interlocutory injunctions, the court found no prima facie case: a letter from the Land Adjudication and Settlement Officer confirmed the Takaungu Adjudication Section had been nullified, cancelling allocations made within it, and the Plaintiffs did not deny that the land fell under the Mazrui Lands Trust Act or contest the effect of the 2012 judgment. The application was dismissed, with each party bearing their own costs owing to the confusion created by the repeal and reinstatement of the Act.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established; the Plaintiffs' root of title (allocation within the Takaungu Adjudication Section) had been nullified, and the Defendant demonstrated it leased the land from the Mazrui family, the owners

Reasoning

The Plaintiffs relied on a 2010 letter identifying the deceased as bona fide owner of Plot 706 within the Takaungu Land Adjudication Section. However, a later letter from the Land Adjudication and Settlement Officer confirmed that the Takaungu Adjudication Section was nullified through Civil Case No. 185 of 1991, cancelling allocations made thereunder. The Plaintiffs did not deny the land fell under the Mazrui Lands Trust Act nor contest the effect of the 2012 judgment declaring the repeal unconstitutional. The Defendant leased the disputed portion from the Trustees of the Mazrui family, who are the owners.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with probability of success, demonstrate irreparable injury, and show the balance of convenience lies in their favour
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and the probability of success upon trial

Court orders

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  1. 1.The Plaintiffs' Notice of Motion application dated 22nd January 2018 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Mazrui Lands Trust Act (Cap 286)Repealed by Mazrui Lands Trust (Repeal) Act, 1989
  • Mazrui Lands Trust (Repeal) Act1989 repeal
  • Land Adjudication Act (Cap 284)General

Cases cited (3)

  • Nguruman Ltd vs Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Mombasa High Court Constitutional Petition No. 185 of 1991
Jurisdiction invoked
Original jurisdiction over land disputes and interlocutory applications in a pending suit (Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Asha Ali Abdalla & another v Mombasa Cement Limited [2018] KEELC 486 (KLR)", Case Analysis (2018). Notice of Motion dated 22nd January 2018 (filed 24th January 2018), within a suit over Plot No. 706 Takaungu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/486/eng@2018-12-14

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