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ELCAllowedNot stated in the judgment· [2018] KEELC 4054 (KLR)

Abdalla Kombo v Twalha Abdalla & 3 others [2018] KEELC 4054 (KLR)

Environment and Land Court
12 March 2018
CYC. Yano
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court blocked the sale of inherited family land, confirming Kenyan courts can freeze estate property until succession is completed.

What this practically means

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Executive summary

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The Plaintiff, Abdalla Kombo, moved the Court by Notice of Motion dated 5th April 2017 under the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking a temporary injunction restraining the Defendants - his step-mother and her children - from dealing with, selling, wasting or interfering with the property known as ROKA/UYOMBO/105 pending the hearing of the application and the suit. He averred that the property belonged to his late father, Kombo Abdalla Kombo, whose estate was the subject of succession proceedings before the Kadhi's Court in Succession Cause No. 59 of 2006, in which the heirs were identified and the Kadhi's Court decreed distribution of all the deceased's properties. He contended that the Respondents, who held the title documents, had sold movable properties and some estate lands and were in the process of selling the suit property, amounting to intermeddling. The Defendants, by grounds of opposition, argued that the suit was bad in law as the property belonged to a deceased person, the Plaintiff was not the administrator, and the Court lacked jurisdiction under Section 13 of the Environment and Land Court Act over succession matters; they sought a stay and striking out of the suit. The Defendants filed no Replying Affidavit, leaving the Plaintiff's facts uncontroverted. The court, C. Yano J, held that even so the Plaintiff had to establish a prima facie case and irreparable harm; relying on Giella v Cassman Brown, Mrao v First American Bank and Suleiman v Amboseli Resort, and the lower-risk-of-injustice principle, his Lordship found a prima facie case, noted the land's intrinsic value as inheritance, and granted the injunction to maintain the status quo pending distribution. The application was allowed in terms of prayer 3 with costs to the Plaintiff.

Key legal issues

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01

Whether an interlocutory injunction should issue to preserve the estate property pending distribution ordered by the Kadhi's Court

Holding

Yes. The Plaintiff, a legal heir, established a prima facie case; the suit property is registered in the deceased's name and forms part of the estate; sale before distribution would cause irreparable loss; the injunction maintains the status quo.

Reasoning

The court found the succession proceedings pending in the Kadhi's Court with a judgment decreeing distribution to the heirs. The official search showed ROKA/UYOMBO/105 registered in the deceased's name, hence part of the estate. Exhibited sale agreements showed the Respondents had sold estate properties before distribution. Since the Defendants filed no Replying Affidavit, the facts stood uncontroverted. Applying the lower-risk-of-injustice principle and the overriding objective, the court held the Plaintiff would suffer irreparable loss as inherited land has intrinsic value, and granted the injunction to preserve the status quo pending distribution.

p. 2

Legal principles established

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  • In interlocutory injunction applications the court is not rigidly bound by the three Giella principles and may consider the circumstances of the case generally and the overriding objective.
  • The court may grant interlocutory relief to safeguard the status quo where refusing it risks greater injustice, applying the lower-risk-of-injustice principle.

Court orders

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  1. 1.The Application dated 5th April 2017 allowed in terms of prayers 3 thereof (temporary injunction restraining the Defendants from dealing with, selling or interfering with ROKA/UYOMBO/105 pending hearing and determination of the application and the suit)
  2. 2.Plaintiff granted the costs of the Application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A & 63(e)
  • Civil Procedure RulesOrder 40; Order 51 Rules 1 and 2
  • Environment and Land Court ActSection 13

Cases cited (3)

  • Giella –v- Cassman Brown & Co Ltd
    1973 EA 358
  • Mrao –v- First American Bank of Kenya Limited & others
    (2003) KLR 125
  • Suleiman –v- Amboseli Resort Ltd
    (2004) eKLR 589
Jurisdiction invoked
Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act and Order 40 and Order 51 Rules 1 and 2 of the Civil Procedure Rules

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, "Abdalla Kombo v Twalha Abdalla & 3 others [2018] KEELC 4054 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4054/eng@2018-03-12

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