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ELCDismissedUnstated (Plaint dated 2nd February 2017)· [2018] KEELC 4190 (KLR)

Abdul Hamid Ebrahim v Hassan Abdukadir Aziz [2018] KEELC 4190 (KLR)

Environment and Land Court
7 March 2018
2,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued the defendant, son and administrator ad litem of the deceased, alleging that in 2007 he orally agreed to buy the portion of PLOT 258/II/MN he occupied for Kshs.300,000.00, paid that sum, and also financed survey and subdivision costs; he sought declarations that the deceased sold the plot to him and held it in trust, an injunction against intermeddling with the estate, and a mandatory order compelling release of the original deed plan. The defendant filed a preliminary objection that the oral sale agreement offended Section 3(3) of the Law of Contract Act and that the suit was time-barred under Section 4(1) of the Limitation of Actions Act, and opposed the interlocutory application. The court overruled the preliminary objection, holding that it was not a pure point of law since when the cause of action arose required evidence. On the application, the court applied the Giella v Cassman Brown principles for prohibitory injunctions and the higher Locabail standard for mandatory injunctions. It found no prima facie case with probability of success, no irreparable injury (the sums allegedly paid being ascertainable), no special circumstances justifying a mandatory injunction, and the balance of convenience favouring the administrator collecting and preserving the estate. The Notice of Motion dated 2nd February 2017 was dismissed with costs to the defendant. The court further noted the value of the subject matter (Kshs.300,000.00 purchase price plus Kshs.463,398.00 expenses) and suo moto transferred the suit to the Chief Magistrate's Court, Mombasa for trial and determination.

Key legal issues

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01

Whether the preliminary objection based on Section 3(3) of the Law of Contract Act and the Limitation of Actions Act could be determined without evidence

Holding

The objection was overruled because it required evidence on when the cause of action arose

Reasoning

The court found the claim encompassed matters of fact requiring proof in evidence, including whether the transactions were ongoing and predicated on completion of survey and subdivision. Since limitation and enforceability turned on when the cause of action arose, the objection was not a pure point of law and could not be resolved on the pleadings alone.

p. 3
02

Whether the plaintiff met the threshold for a prohibitory and mandatory interlocutory injunction

Holding

Neither injunction was granted; no prima facie case, no irreparable harm, and no special circumstances for a mandatory injunction

Reasoning

Applying Giella v Cassman Brown, the court found no prima facie case with probability of success and no irreparable injury since the sums allegedly paid were ascertainable. For the mandatory injunction, the higher Locabail standard applied and no special circumstances or clear case was shown. Balance of convenience favoured the administrator preserving the estate.

p. 4

Legal principles established

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  • A preliminary objection that requires evidence as to when the cause of action arose does not raise pure points of law
  • A mandatory injunction at the interlocutory stage will not be granted absent special circumstances and only in clear cases, to a higher standard than a prohibitory injunction

Court orders

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  1. 1.The preliminary objection dated 14th February 2017 is overruled
  2. 2.The Notice of Motion dated 2nd February 2017 is dismissed with costs to the Defendant
  3. 3.The court, suo moto, transferred the suit to the Chief Magistrate's Court, Mombasa for trial and determination
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; matter subsequently transferred suo moto to the Chief Magistrate's Court, Mombasa on value

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, "Abdul Hamid Ebrahim v Hassan Abdukadir Aziz [2018] KEELC 4190 (KLR)", Case Analysis (2018). Unstated (Plaint dated 2nd February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4190/eng@2018-03-07

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