Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in judgment· [2018] KEELC 3395 (KLR)

Ali Dhidha Mohamed & another v Mohamed Omar Khamis & another [2018] KEELC 3395 (KLR)

Environment and Land Court
9 May 2018
CYC. Yano
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan land buyer who bought from someone who was not the registered owner failed to win a full injunction, but the court froze the situation pending trial.

What this practically means

#

Executive summary

#
The plaintiffs moved the Environment and Land Court at Mombasa by Notice of Motion dated 13th October 2017 seeking a temporary injunction restraining the defendants from selling, disposing of or transferring the 1st plaintiff's house and the land on Plot No. 96 Sec. 11/MN Mishomoroni/Kisauni pending trial. The application followed an advertised public auction set for 21st October 2017 by the 2nd defendant (auctioneers) at the instance of the 1st defendant, an administrator of the estate of the late Ali Rashid Ali, to recover purported ground rent arrears under the Distress for Rent Act. The 1st defendant opposed, asserting he held a confirmed grant and had legal capacity to collect rent, that the 1st plaintiff had failed to pay ground rent and ignored an offer to purchase, and that the plaintiffs came to court with unclean hands. The court applied the Giella v Cassman Brown principles. It found the suit property registered in the name of the deceased and that the 1st defendant, as administrator, was entitled to administer the estate. However, it was unclear what interest the vendor sold to the 1st plaintiff, and ownership had to await trial. The court held no prima facie case was established, that damages had not been shown to be inadequate, and that the balance of convenience favoured the 1st defendant. Nonetheless, to preserve the status quo, it granted an injunction on terms that outstanding rent arrears be paid and ground rent continue to be paid until trial, with each party bearing their own costs. Considering the value of the subject matter (Kshs.550,000/=), the court suo moto transferred the suit to the Chief Magistrate's Court, Mombasa for trial and determination.

Key legal issues

#
01

Whether plaintiffs established a prima facie case for temporary injunction

Holding

No prima facie case established; ownership of the interest sold is unclear and must await trial

Reasoning

The suit property is registered in the name of Ali Rashid Ali (deceased), and the 1st defendant is a duly appointed administrator entitled to administer the estate. The person from whom the 1st plaintiff bought was not the registered owner and it is unclear what interest was sold. Ownership questions must await full trial, so no prima facie case with probability of success was shown.

p. 2
02

Whether damages would be an adequate remedy

Holding

Plaintiffs did not demonstrate that damages would be inadequate

Reasoning

The court found the plaintiffs failed to show irreparable damage not compensable by damages, a required limb of the Giella test. The consideration for the house was stated as Kshs.550,000/=, an amount capable of assessment, which supports adequacy of damages.

p. 2
03

Balance of convenience

Holding

Balance of convenience favours the 1st defendant as administrator of the estate

Reasoning

The court found the 1st defendant was discharging his lawful mandate as administrator of the deceased's estate in collecting ground rent. Nevertheless, to preserve the subject matter pending trial, the court granted the injunction conditionally, requiring payment of rent arrears and continued payment of ground rent.

p. 2
04

Jurisdiction over the suit

Holding

Court suo moto transferred the matter to the magistrates' court given the value of the subject matter

Reasoning

Considering that the 1st plaintiff acquired the property for Kshs.550,000/=, the judge concluded the dispute fell within the pecuniary jurisdiction of the magistrate's court and transferred it accordingly.

p. 2

Legal principles established

#
  • The principles for temporary injunctions are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable damage, and balance of convenience.

Court orders

#
  1. 1.Injunction granted on terms to maintain the status quo pending determination of the main suit
  2. 2.Defendants to pay any outstanding rent arrears and continue to pay ground rent when due until hearing and determination of the main suit
  3. 3.Each party to bear their own costs
  4. 4.Matter transferred suo moto to the Chief Magistrate's Court, Mombasa for trial and determination

Authorities

#

Legislation

  • Distress for Rent ActNot specified

Cases cited (1)

  • Giella –vs- Cassman Brown & Co.
    [1973] EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; court suo moto invoked its power to transfer the matter to the Chief Magistrate's Court, Mombasa

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ali Dhidha Mohamed & another v Mohamed Omar Khamis & another [2018] KEELC 3395 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3395/eng@2018-05-09

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