Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedApplication dated 17.11.2017 (suit over Plot MOMBASA/BLOCK XVII/1526)· [2018] KEELC 2938 (KLR)

Omar Said Kullatein & another v Esha Ali & 2 others [2018] KEELC 2938 (KLR)

Environment and Land Court
22 June 2018
AOA. Omollo
2,019 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Mombasa court refused to stop construction on a titled Mombasa plot because the neighbours had no documentary proof it was a road reserve.

What this practically means

#

Executive summary

#
This was a ruling on the plaintiffs' notice of motion dated 17 November 2017, brought under Order 40 rules 1 and 2 of the Civil Procedure Rules, seeking an interlocutory injunction restraining the defendants from constructing, dumping building materials, excavating or digging on Plot MOMBASA/BLOCK XVII/1526, plus an order for production of the original survey plan and related survey documents. The plaintiffs, owners of plots MSA/BLOCK/1639 and MSA/BLOCK XVII/1528, contended that plot 1526 was an access road or public utility, that the 1st defendant's title was fraudulently issued by the 3rd defendant, and that the 2nd defendant improperly approved the 1st defendant's development plans despite complaints. The 1st defendant asserted he was the registered owner, held approved plans and licences, and that it was the plaintiffs' plot 1528 that encroached on the access road. The 2nd defendant confirmed issuing approvals and denied the plot was a road reserve. Applying the prima facie case test from Mrao and Giella, Omollo J found the applicants' documents - letters, a map and photographs - did not show that plot 1526 was reserved as a public utility or access road; the map even showed a distinct road separate from the plot. Fraud allegations lacked pleaded particulars and were premature. The balance of convenience favoured the 1st defendant, whose approved development had been stalled by the complaints. The application was dismissed with costs to the 1st and 2nd defendants on 22 June 2018.

Key legal issues

#
01

Whether the applicants established a prima facie case for an interlocutory injunction

Holding

They did not; their documents did not show plot 1526 was reserved as a public utility or access road, and fraud was not pleaded with particulars

Reasoning

The court examined the applicants' letters, map and photographs. The map showed a distinct road existing separate from plot 1526, and the letter of 28 November 2016 made no conclusive remark that the plot was a road reserve. Fraud allegations were premature and not pleaded with particulars in the plaint, and fraud can only be proved by evidence.

p. 3
02

Balance of convenience

Holding

It tilts in favour of the 1st defendant, who has been unable to carry out approved developments due to the plaintiffs' constant complaints

Reasoning

The 1st defendant holds title, has approved plans and development licences, and the 2nd defendant confirmed approving the plans. The plaintiffs produced no evidence of their alleged right of way. An injunction would therefore restrict the 1st defendant's enjoyment of his registered land without demonstrated basis.

p. 4

Legal principles established

#
  • A prima facie case in a civil application is a case which, on the material presented, shows a right apparently infringed so as to call for an explanation or rebuttal from the opposite party

Court orders

#
  1. 1.The notice of motion dated 17.11.2017 is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd defendants

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 rules 1 & 2
  • Land Registration Actsection 24
  • Physical Planning ActCap 286, paragraph v

Cases cited (3)

  • Panari Enterprises Ltd vs Lijoodi & 2 others
    (2014) eKLR
  • Giella vs Cassman Brown
    null
  • Mrao vs First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
Jurisdiction invoked
Original civil jurisdiction; application under Order 40 rules 1 & 2 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Omar Said Kullatein & another v Esha Ali & 2 others [2018] KEELC 2938 (KLR)", Case Analysis (2018). Application dated 17.11.2017 (suit over Plot MOMBASA/BLOCK XVII/1526). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2938/eng@2018-06-22

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