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ELCAllowedNot stated in the judgment (Mombasa; Notice of Motion dated 28th March 2017)· [2018] KEELC 4222 (KLR)

Patricia Musungu Shaaban v Mohamed Shaaban & 4 others [2018] KEELC 4222 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Mombasa)
8 March 2018
CYC. Yano
2,679 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Mombasa court froze all dealings in Diani Beach plots pending trial, holding that land sold while a case was pending could not escape the litigation.

What this practically means

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Executive summary

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The Plaintiff, Patricia Musungu Shaaban, moved the court by Notice of Motion dated 28th March 2017 seeking an injunction restraining the 2nd to 5th Defendants from reselling, transferring, sub-leasing, alienating, mortgaging, charging or otherwise dealing with TITLE NO. KWALE/DIANI BEACH BLOCK/172 or its subdivisions (plot Nos. 1359, 1360, 1361 and 1362) pending hearing of the suit. She relied on a decree in consolidated Mombasa HCCC No.3 of 2014 (OS) declaring the plot matrimonial property held with the 1st Defendant in equal shares, which she could not register because the plot had been subdivided and transferred to the 2nd to 5th Defendants. The Defendants opposed, contending the subdivision and subleases predated or were independent of the litigation, that they purchased for value after due search, and that the decree had been overtaken by events. Justice C. Yano applied the Giella v Cassman Brown principles as flexibly supplemented by the overriding objective and the lower-risk-of-injustice approach in Suleiman v Amboseli Resort, and invoked the doctrine of lis pendens as explained in Mawji v International University and Bellamy v Sabine. Finding a prima facie case and balance of convenience in the Plaintiff's favour, and noting the sale agreements were entered during the pendency of HCCC No.1088 of 2006, the court granted the application in terms of prayer 3, preserving the suit properties, with each party bearing their own costs of the application.

Key legal issues

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01

Whether the Plaintiff established grounds for an interlocutory injunction over the subdivided suit properties

Holding

Injunction granted on the basis of a prima facie case and balance of convenience, applying lis pendens and the overriding objective to preserve the status quo pending full hearing

Reasoning

The court noted the property was subject of prior proceedings; sale agreements with the 2nd/3rd and 5th Defendants were entered into during the pendency of HCCC No.1088 of 2006. Though the affidavits conflicted on timing, the Plaintiff held a decree in her favour while the Defendants were registered proprietors, so maintaining the status quo carried the lower risk of injustice and preserved the suit from becoming academic.

p. 3

Legal principles established

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  • The court is not strictly bound by the Giella v Cassman Brown principles and may consider the overriding objective and the risk of injustice in interlocutory injunction applications
  • The doctrine of lis pendens preserves suit property from alienation pending determination of a suit

Court orders

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  1. 1.Application granted in terms of prayer 3 - injunction restraining the 2nd, 3rd, 4th and 5th Defendants from reselling, transferring, sub-leasing, alienating, mortgaging, charging, interfering or in any manner dealing with TITLE NO. KWALE/DIANI BEACH BLOCK/172 or subdivisions (plot Nos. 1359, 1360, 1361 and 1362) pending hearing and determination of the suit
  2. 2.Each party to bear their respective costs of the application
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 40 of the Civil Procedure Rules; Section 28(a) of the Land Registration Act

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, "Patricia Musungu Shaaban v Mohamed Shaaban & 4 others [2018] KEELC 4222 (KLR)", Case Analysis (2018). Not stated in the judgment (Mombasa; Notice of Motion dated 28th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4222/eng@2018-03-08

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