Nicodemus Ngala & 87 others v Salim Mohamed Salim [2018] KEELC 2959 (KLR)
The bottom line
#A Mombasa court refused to protect land claimants who waited two years after being forced off the land, showing delay can sink injunction applications.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants met the threshold for a temporary injunction
The application failed; no prima facie case, irreparable loss or balance of convenience was demonstrated, and delay defeated equity
The court found the applicants had not addressed the three Giella principles. They admitted stopping cultivation in late 2015 yet only moved the court in August 2017. The balance of convenience favoured the respondent, who lived on the land, and an injunction could not reverse the respondent's occupation. The application was dismissed.
Whether the suit was defective for non-compliance with Order 37 rule 7
The preliminary objection failed because a copy of the title was annexed to the affidavit in support of the originating summons
The respondent objected that a certified extract of the register was not annexed. The court noted the plaintiffs had annexed a copy of the title containing details of the disputed land to the originating summons, and accordingly found the objection devoid of merit.
Whether authorities on final adverse-possession claims apply at interlocutory stage
They do not; the main suit had not been heard and the applicants had not addressed the interlocutory principles
The applicants relied on a case holding that cultivation without fencing proves possession, but the court held it was inapplicable at the interlocutory stage. The respondent's authorities concerned final decisions on adverse possession. The applicants' submissions failed to address prima facie case, irreparable harm or balance of convenience.
Legal principles established
#- A temporary injunction cannot be used to undo what has already been done
- Delay in seeking an interlocutory equitable remedy disentitles a party to injunctive relief
- Authorities on final adverse-possession determinations are not relevant at the interlocutory stage
Court orders
#- 1.The application dated 22nd August 2017 is dismissed
- 2.The preliminary objection is dismissed for lack of merit
- 3.Each party to bear their respective costs of the preliminary objection and the application
- Jurisdiction invoked
- Order 40 of the Civil Procedure Rules (interlocutory injunction application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicodemus Ngala & 87 others v Salim Mohamed Salim [2018] KEELC 2959 (KLR)", Case Analysis (2018). Not stated in judgment (Originating Summons, adverse possession proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2959/eng@2018-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.