Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 24th November 2016 (Malindi ELC)· [2018] KEELC 1161 (KLR)

Mohamed Arfun Mohamed &another; v Lali Athman Lali [2018] KEELC 1161 (KLR)

Environment and Land Court
31 October 2018
JOJ.O. Olola
1,312 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Malindi court stopped a landowner from building on his neighbour's plot, showing that written sale agreements and occupation win injunction disputes.

What this practically means

#

Executive summary

#
This was a ruling on a Notice of Motion dated 24th November 2016 in which two Plaintiffs sought a temporary injunction to restrain the Defendant from constructing on, entering into, encroaching on, or trespassing upon a parcel measuring 40 feet by 90 feet, part of Parcel No. 347 at Muyeye area, Malindi, with enforcement by the Officer-in-Charge of Malindi Police Station and costs. The Plaintiffs asserted that they purchased the parcel in 2011 from Bakari Nassir Aboud, built a residential house, and were in peaceful occupation until 15th November 2016 when the Defendant trespassed and began constructing a wall. The Defendant countered that the Plaintiffs bought from someone without title and had themselves encroached two metres onto land his mother bought from Abdirehman Omar Ahmed in 2011. Applying the Nguruman triple test and the Mrao definition of a prima facie case, the court found the Plaintiffs had made out a prima facie case with probability of success: their sale agreement, the occupation, the vendor's supporting supplementary affidavit, and even the affidavit of the man alleged to have sold to the Defendant's mother - who disavowed the Defendant's claimed enlargement of his mother's parcel - all contradicted the Defendant, who admitted putting up a fence but could not explain how he computed the two-metre encroachment. The Defendant's assault conviction arising from an attack on the Plaintiffs' vendor reinforced the court's view. The court was satisfied the Plaintiffs in occupation would suffer great loss unless restrained. The application was allowed in terms of Prayers 3 and 4, with police enforcement, and the Plaintiffs were awarded costs. Judgment was delivered at Malindi on 31st October 2018.

Key legal issues

#
01

Whether the Plaintiffs made out a prima facie case with a probability of success

Holding

Yes - the Plaintiffs bought the disputed 40ft by 90ft parcel from Bakari Nassir Aboud in 2011 and occupied it peacefully; both the Vendor and the Defendant's own vendor's evidence contradicted the Defendant's claim of encroachment

Reasoning

The Plaintiffs produced a written sale agreement dated 19th August 2011 and demonstrated occupation. The Defendant admitted entering the land in November 2016 and putting up a fence but did not explain how he calculated a two-metre encroachment onto his mother's parcel. Both the Plaintiffs' vendor and the man alleged to have sold land to the Defendant's mother disavowed the Defendant's boundary claims, and the Defendant's violent conduct (assault conviction) undermined his position. The court found an apparently infringed right with probability of success.

p. 2
02

Whether the Plaintiffs stand to suffer irreparable harm and whether the balance of convenience favours the injunction

Holding

Yes - the Plaintiffs are in occupation and would suffer great loss and damage unless the Defendant is stopped; the injunction was enforceable by police given the Defendant's violent conduct

Reasoning

The court noted that the Plaintiffs were in occupation of the suit property and characterised the Defendant's conduct as an unsupported quest for territorial aggrandisement. Given the Defendant's past violent conduct, including assaulting the vendor who tried to dissuade him from building, the court found it reasonable that the injunction orders be enforced with police assistance.

p. 2

Legal principles established

#
  • An applicant for an interlocutory injunction must establish a prima facie case, demonstrate irreparable injury, and show the balance of convenience lies in his favour
  • A prima facie case in civil cases is one showing an apparently infringed right with probability of success, higher than an arguable case

Court orders

#
  1. 1.Temporary injunction restraining the Defendant from constructing on, entering into, encroaching on, or trespassing upon the parcel measuring 40 feet by 90 feet (Prayer No. 3)
  2. 2.Orders to be effected with the assistance of the Officer-in-Charge, Malindi Police Station (Prayer No. 4)
  3. 3.Plaintiffs awarded the costs of the application

Authorities

#

Legislation

  • Penal CodeSection 251

Cases cited (2)

  • Nguruman Limited –vs- Jan Bonde Nelsen & 2 Others
    CA 77 of 2012
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (injunction application)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mohamed Arfun Mohamed &another; v Lali Athman Lali [2018] KEELC 1161 (KLR)", Case Analysis (2018). Notice of Motion dated 24th November 2016 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1161/eng@2018-10-31

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