Celestine Ann King & 4 others v Said Hassan Mwatsumiro & 5 others [2018] KEELC 1774 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
No - the Plaintiffs' title (Kwale/Diani Beach Block/76) ceased to exist upon compulsory acquisition; their fraud allegations against the Defendants were unsupported by evidence
The court found that following compulsory acquisition of the original parcel for the Diani Tourist Road, Plot 76 ceased to exist and new parcels with new titles were created. The Plaintiffs, as beneficiaries of Nina Mitton's estate, were issued a certificate of lease over Block/76, not the resultant Plot 248. Their claim that the Defendants' 2006 certificate of lease was fraudulent was made without any supporting evidence, so no prima facie case was established.
Whether the Plaintiffs would suffer irreparable injury not compensable by damages
No - any wrongdoing would be by the Government, against whom damages can be sought
The court held that the Plaintiffs failed to demonstrate injury that could not be compensated by an award of damages. If any wrong was committed, it was by the Government in the compulsory acquisition process, and the Plaintiffs' remedy lies against the Government rather than the registered owners of the suit property.
Where the balance of convenience lies
The balance of convenience tilts in favour of the Defendants/Respondents as registered owners
Applying the principles in Paul Gitonga Wanjau v Gathuti Tea Factory Co. Ltd, the court held that the Plaintiffs failed to discharge the burden of showing that their inconvenience if the injunction was refused outweighed that of the Defendants if granted. The Defendants are the current registered owners of Plot 248, and restraining them would deny them the enjoyment of their registered property.
Legal principles established
#- In an application for an interlocutory injunction, the applicant must establish a prima facie case with a probability of success, irreparable loss not compensable by damages, and if in doubt, the court decides on a balance of convenience
- An applicant for injunction must show a right, legal or equitable, requiring protection by injunction, coupled with full and frank disclosure
- Fraud must be proved by evidence; allegations of fraud without proof will not defeat a registered title
- The burden lies on the applicant to show that the inconvenience suffered if the injunction is refused exceeds that which the respondent would suffer if granted
Court orders
#- 1.The Notice of Motion dated 12th October, 2017 is dismissed
- 2.The interim orders of injunction granted on 12th October, 2017 are discharged
- 3.The costs of the application do abide the outcome of the main suit
- Jurisdiction invoked
- Article 40 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act (Chapter 21 Laws of Kenya); Order 40 Rule 1 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Celestine Ann King & 4 others v Said Hassan Mwatsumiro & 5 others [2018] KEELC 1774 (KLR)", Case Analysis (2018). Notice of Motion dated 12th October, 2017 (in the main suit at the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1774/eng@2018-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.