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ELCPartially AllowedNot stated in the judgment (ELC, Mombasa)· [2018] KEELC 1318 (KLR)

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)

Environment and Land Court
16 October 2018
2,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a ruling on the plaintiff's Notice of Motion dated 31 July 2017 in a land suit before the Environment and Land Court at Mombasa. The plaintiff, suing as administrator of the estate of Kahindi Gona Fondo (deceased), sought a temporary injunction restraining the defendants from trespassing on, occupying, selling or interfering with parcel MN/11/3633, and a mandatory injunction compelling the defendants to demolish structures allegedly erected on the land, with an eviction order in default. The plaintiff deponed that the deceased was the owner and occupier until his death on 10 January 2014, after which strangers invaded the land allegedly with the encouragement of the area chief and sub-chief. The 1st, 5th, 6th, 7th, 8th, 9th and 11th defendants filed replying affidavits and grounds of opposition denying trespass, disputing the plaintiff's locus standi on the basis that title documents were in the name of Little Cottage Estates Company Ltd, and contending the suit was an abuse of process given prior litigation (ELC Case No. 175 of 2013 and No. 249 of 2013) over the same parcel. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the plaintiff had established a prima facie case with a probability of success, that the estate had an interest in the land, and that damages would be inadequate, with the balance of convenience favouring preservation of the status quo. However, applying the higher standard in Locabail v Agro-Export, the court declined the mandatory injunction for want of special circumstances. The court granted the temporary injunction in terms of prayer (c), restraining further construction, sale, alienation, tree cutting or fencing pending trial, and ordered each party to bear their own costs of the application. Judgment delivered by C. Yano, J, on 16 October 2018 at Mombasa.

Key legal issues

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01

Prima facie case and irreparable harm for temporary injunction

Holding

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

Reasoning

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.

p. 3
02

Mandatory injunction standard

Holding

The mandatory injunction to demolish structures was refused because the case was not clear or unusually strong

Reasoning

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.

p. 4
03

Locus standi and abuse of process objections

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Mandatory injunction to demolish structures declined
  3. 3.Each party to bear their respective costs of the application

Authorities

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Cases cited (4)

  • Giella –v- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Locabail International Finance Ltd –v- Agro – Export & Another
    (1986) 1 ALL ER 901
  • Mrao Limited –v- First American Bank of Kenya
    (2003) KLR 125
  • Suleiman –v- Amboseli Resort Ltd
    (2004) KLR 589
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in a land suit)

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, "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.