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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 1567 (KLR)

Sharad Jethalal Shah & another v Rama Mohammed [2018] KEELC 1567 (KLR)

Environment and Land Court
19 September 2018
2,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to order exhumation or eviction at an early stage of a land dispute, but froze the property until the full case is heard.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Obaga J) determines two applications in a land dispute over LR No. Nairobi Block 126/790, Kamulu. The plaintiffs, registered owners, applied on 15th May 2017 for mandatory injunctions to exhume the body of Samuel John Githinji buried on the land by the defendant, to remove a wall and structures he erected, and alternatively to preserve the property. The court declined the exhumation order because the relief was not contained in the plaint; the applicants' earlier application to restrain the burial had been overtaken by events and they never amended the plaint. On the demolition/eviction prayer, the court accepted that the defendant was a trespasser who should give way pending trial, applying Court of Appeal authority on mandatory injunctions and trespass, but withheld the mandatory eviction order because a representative of the deceased's estate had been joined and the applicants themselves sought preservation. Instead, status quo was to be maintained - the interred body, structures and wall to remain - with no further construction or alienation pending determination; costs were reserved to the cause. The second application, by the defendant dated 16th November 2017, sought to bar Mr Jimmy Sausi Advocate and the firm Ochoki & Ochoki Associates from acting for the plaintiffs under Rule 9 of the Advocates (Practice) Rules, alleging fraud and that the advocate was a potential witness. The court found no evidence of conflict of interest, affirmed the constitutional right to counsel of choice, and dismissed the application with costs.

Key legal issues

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01

Whether exhumation can be ordered at interlocutory stage where the relief is absent from the plaint

Holding

No; the applicants had to amend the plaint to include a prayer for exhumation before seeking the same order at interlocutory stage.

Reasoning

The earlier application to restrain burial was overtaken by events when the respondent buried the deceased on the suit land. The respondent relied on Morris and Company Ltd v Kenya Commercial Bank, where Ringera J struck out an injunction application where there was no corresponding prayer in the main suit. The court agreed that relief sought in an application must be anchored in the main suit; absent amendment, the exhumation prayer fails.

p. 2
02

Whether a mandatory injunction for demolition/eviction should issue at interlocutory stage

Holding

The court found the case fit for a mandatory order in principle since the respondent was a trespasser, but declined to order eviction, directing maintenance of the status quo instead.

Reasoning

Applying Sharrif Abdi Hassan v Nadhif Jama Adan and Jaj Super Power Cash and Carry Ltd v Nairobi City Council, the court held that a trespasser should give way pending determination. The respondent did not deny erecting the structures and had no interest in the land. However, because a representative of the deceased's estate had been joined and the applicants themselves sought preservation, the interests of justice demanded that eviction not issue; status quo including the interred body and structures was to be maintained.

p. 2
03

Whether an advocate should be barred from acting where he is listed as a witness (Rule 9, Advocates (Practice) Rules)

Holding

The application was dismissed; the mere listing of an advocate as a witness is no ground to bar him without evidence of conflict of interest or likely need to testify.

Reasoning

Mr Sausi acted only for the respondents and Pauline Mbaire Kariuki in drawing the sale agreement; he did not act for the applicant, the interested party, or Ngundu Farmers Company Limited. The third party raised no complaint. Rule 9 was cited but the applicant showed no basis for disqualification; a party has a constitutional right to an advocate of choice, removable only on justifiable grounds.

p. 3

Legal principles established

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  • A mandatory injunction cannot be granted at interlocutory stage unless there are special circumstances
  • Interlocutory relief cannot be granted on a prayer not anchored in the main suit; the plaint must be amended first
  • The mere listing of an advocate as a witness is not a ground to bar him from acting for a party; there must be evidence of conflict of interest

Court orders

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  1. 1.Prayer for exhumation of the body of the deceased declined for not being anchored in the main suit
  2. 2.Mandatory order of eviction/removal of structures withheld; status quo to be maintained pending the hearing and determination of the suit
  3. 3.No further construction or interference with the suit property by way of alienation until the suit is heard and determined
  4. 4.Costs in the cause for the application dated 15th May 2017
  5. 5.Application dated 16th November 2017 seeking to bar Mr Jimmy Sausi from acting for the plaintiffs dismissed with costs

Authorities

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Legislation

  • Advocates (Practice) RulesRule 9

Cases cited (3)

  • Morris and Company Ltd Vs Kenya Commercial Bank and others
    HCCC No.729 of 2003
  • Sharrif Abdi Hassan Vs Nadhif Jama Adan
    2006 eKLR
  • Jaj Super Power Cash and Carry Ltd Vs Nairobi City Council & 20 Others
    Civil Appeal No.111 of 2002
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property LR No. Nairobi Block 126/790 (no specific constitutional/statutory provision stated in the judgment)

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, "Sharad Jethalal Shah & another v Rama Mohammed [2018] KEELC 1567 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1567/eng@2018-09-19

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