Katana Kahindi Fondo suing as the legal representative of the Estate of Kahindi Gona Fondo (Deceased) v Nelson Ajulu & 10 others [2018] KEELC 1318 (KLR)
The bottom line
#A Mombasa court froze all activity on disputed family land pending trial, but refused to order demolition of buildings already erected on it.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case and irreparable harm for temporary injunction
The plaintiff established a prima facie case with a probability of success and damages would not be an adequate remedy; the temporary injunction was granted
The plaintiff exhibited documents in the name of the deceased including a certificate of ownership and rates statements, and the estate was shown to have an interest in the suit land. The court accepted that damages could not quantify the harm of continued interference and that preserving the status quo served greater justice pending trial.
Mandatory injunction standard
The mandatory injunction to demolish structures was refused because the case was not clear or unusually strong
Citing Locabail International Finance Ltd v Agro-Export, the court held that a mandatory injunction on an interlocutory application requires special circumstances and a high sense of assurance that the order would be vindicated at trial, a higher standard than for prohibitory injunctions. The disputed affidavits and title entries meant the case did not meet that threshold.
Locus standi and abuse of process objections
The court did not uphold the objections; it proceeded to determine the application on its merits, finding the estate had an interest in the land
The defendants argued the plaintiff lacked locus standi because the title documents were in the name of Little Cottage Estates Co. Ltd and that prior suits over the same land made the suit an abuse of process. The court found the plaintiff had shown the estate of the deceased has an interest in the suit land and did not strike out the application.
Legal principles established
#- The principles for granting an interlocutory injunction are a prima facie case with probability of success, irreparable damage not compensable in damages, and, if in doubt, the balance of convenience
- A mandatory injunction at the interlocutory stage requires special circumstances and a higher standard than a prohibitory injunction
Court orders
#- 1.Temporary injunction granted in terms of prayer (c): the defendants are restrained from continuing with any further construction, selling, alienating, cutting trees or putting up fences on the suit land pending hearing and determination of the suit
- 2.Mandatory injunction to demolish structures declined
- 3.Each party to bear their respective costs of the application
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in a land suit)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Kihika Ng’ang’a v Amos Kimeli Chamdala [2021] KEELC 3858 (KLR)[2021] KEELC 3858 (KLR)16 Mar 2021
- Peter Kihika Ng’ang’a v Amos Kimeli Chamdala [2021] KEELC 3858 (KLR)[2021] KEELC 3858 (KLR)16 Mar 2021cited by court
- George Gichuru Njoroge & 2 others v Samuel Muthui & 2 others [2020] KEELC 3654 (KLR)[2020] KEELC 3654 (KLR)6 Feb 2020
Cite this brief
#Cite this brief
Caselaw, "Katana Kahindi Fondo suing as the legal representative of the Estate of Kahindi Gona Fondo (Deceased) v Nelson Ajulu & 10 others [2018] KEELC 1318 (KLR)", Case Analysis (2018). Not stated in the judgment (ELC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1318/eng@2018-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.