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ELCAllowedNot stated in the excerpt (Notice of Motion dated 5th June 2017 in pending suit)· [2018] KEELC 2626 (KLR)

Ali Kitsao Katana v Kassim Mohamed Omar & 5 others [2018] KEELC 2626 (KLR)

Environment and Land Court
2 July 2018
CYC. Yano
2,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Mombasa court froze all dealings with a disputed Mombasa plot until trial, ruling that preserving the status quo best avoids injustice.

What this practically means

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Executive summary

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The Plaintiff, a Kenyan working in South Africa, applied by Notice of Motion dated 5th June 2017 for a temporary injunction restraining the 3rd and 4th Defendants from constructing on, transferring, disposing of or interfering with Plot No. MN/1/13135 (Mombasa) pending trial. He averred he bought the plot in 2005, left the original title with the 1st Defendant (his cousin) while abroad, began constructing a three-storey building in 2013, and in May 2017 discovered the property had been fraudulently transferred to the 2nd Defendant and onwards to the 3rd and 4th Defendants, who were unknown to him. The 1st Defendant maintained the Plaintiff sold the property to the 2nd Defendant; the 2nd Defendant asserted he purchased it in Johannesburg for ZAR 950,000 (Kshs. 6,550,000) in 2015 and resold it to the 3rd and 4th Defendants for Kshs. 9 million; the 3rd and 4th Defendants claimed to be purchasers for value without notice after due diligence, and denied the Plaintiff's occupation. Applying Giella v Cassman Brown as informed by Mrao Ltd v First American Bank, Suleiman v Amboseli Resort and Mawji v International University, C. Yano, J held that whether the Plaintiff sold the property to the 2nd Defendant could only be determined at trial, and that the course carrying the lower risk of injustice was to preserve the status quo so the suit would not be rendered academic. The court found merit in the application, granted the temporary injunction in terms of prayer 3, with costs in the cause. Ruling delivered at Mombasa on 2nd July 2018.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

The court was satisfied the facts demonstrated a prima facie case and that the balance of convenience favoured preservation of the suit property.

Reasoning

The Plaintiff is the registered proprietor on record; the chain of transfers to the 2nd, 3rd and 4th Defendants is disputed and allegations of fraud raised. Whether the Plaintiff sold the property to the 2nd Defendant is a matter for trial. Pending that determination, preservation of the property is warranted so the suit is not rendered academic.

p. 3
02

Whether the interlocutory injunction should issue notwithstanding that the core dispute is trial-bound

Holding

Yes; the court granted the injunction to maintain the status quo, relying on the overriding objective and the principle of adopting the lower risk of injustice.

Reasoning

Applying Suleiman v Amboseli Resort and Mawji v International University, the court held that a successful plaintiff should not be forced to litigate afresh if the property is alienated pending judgment; hence the status quo must be protected until the suit is heard and determined.

p. 3

Legal principles established

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  • Where the main dispute (whether the plaintiff sold the property) can only be determined at trial, the court may maintain the status quo as the course carrying the lower risk of injustice.
  • Courts are not strictly bound by the three Giella v Cassman Brown principles and may have regard to the overriding objective and the risk of injustice.

Court orders

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  1. 1.Temporary injunction granted in terms of prayer 3 of the Notice of Motion dated 5th June 2017, restraining the 3rd and 4th Defendants from constructing on, disposing of, transferring, trespassing onto, advertising for sale or interfering with the suit property pending hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

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Cases cited (5)

  • Giella –v- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd –v– First American Bank of Kenya Ltd
    (2003) eKLR
  • Suleiman –v– Amboseli Resort Ltd
    (2004) KLR 589
  • Mawji –v– International University & Another
    (1976-80) KLR 229
  • Films Rover International
    (1986) 3 AA EL 772
Jurisdiction invoked
Original civil jurisdiction (interlocutory application in a pending land suit)

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, "Ali Kitsao Katana v Kassim Mohamed Omar & 5 others [2018] KEELC 2626 (KLR)", Case Analysis (2018). Not stated in the excerpt (Notice of Motion dated 5th June 2017 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2626/eng@2018-07-02

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