Abdulkadir Ahemed Rahimkhan & another v County Government of Kwale & 5 others [2018] KEELC 4430 (KLR)
The bottom line
#A Kwale family holding land under an expired lease won temporary protection from eviction and development, but cannot sell or build until the court decides the case.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The plaintiffs established a prima facie case by showing they applied for extension of the lease before expiry and received positive responses of approval
The court found it undisputed that the applicants were in possession, the lease expired on 1.1.2013 and they applied for extension before expiry. Positive responses from the County Council and Ministry of Lands were exhibited. Whether the application met legal requirements and whether responses were approvals or mere recommendations were matters for full trial.
Defects in form and substance of the extension application
Not determinable summarily at interlocutory stage; a matter for full trial
The 1st and 6th defendants argued non-compliance with sections of the Physical Planning Act and other land statutes. The court held that such issues go to the merits of the suit and cannot be resolved on an injunction application, especially as no striking-out application was before it.
Balance of convenience and preservation of possession
Balance of convenience tilts in favour of the applicants remaining in possession until the status of their lease is determined, subject to restrictions on alienation and new construction
Since the leasehold interest is contested and the question of reversion and notice to vacate is unresolved, the court preserved the status quo: plaintiffs may remain and cultivate but may not sublease, charge, transfer, part with possession or erect new buildings pending determination.
Distinguishability of authority relied on by defendants
Ahmed Obo v Kenya Airports Authority distinguished as it concerned striking out, governed by different principles from injunction applications
The court noted the cited decision dealt with an application for striking out a suit, which engages a different set of principles from an application for temporary injunctive relief.
Legal principles established
#- For an order of injunction to be granted, an applicant must satisfy the court of a prima facie case with a probability of succeeding
- Issues touching on the substantive validity of a lease-extension application cannot be conclusively determined at the interlocutory stage
- The balance of convenience favours a party in possession remaining in possession pending determination of the status of its lease
Court orders
#- 1.Plaintiffs' application dated 19.4.17 allowed in terms of prayers 4-8
- 2.Injunction restraining the defendants from surveying, planning, subdividing and/or developing LR No. 4659 (Original No. 3855/19) pending hearing and determination of the suit
- 3.Injunction restraining the defendants from harassing, threatening, evicting or interfering with the plaintiffs, their family members, workers or agents regarding occupation, possession and use of the suit property pending hearing and determination of the suit
- 4.Injunction restraining the defendants from inciting residents of Kwale County, squatters, members of the public or the police to harass, threaten or evict the plaintiffs
- 5.The OCS Kwale Police Station to ensure compliance with the court orders and that the plaintiffs are not evicted, harassed or threatened contrary to the orders
- 6.Order directed to the plaintiffs not to sublease, charge, transfer or part with possession of the suit property until the case is heard and determined
- 7.Plaintiffs allowed to cultivate but not to put up new buildings on the suit property until the suit is heard and determined
- 8.The 1st and 6th defendants' application dated 16th June 2017 not granted as prayed
- 9.Costs of both applications to abide the outcome of the suit
- Jurisdiction invoked
- Inherent jurisdiction of the High Court/Environment and Land Court to grant interlocutory orders of injunction (Order 40 of the Civil Procedure Rules invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulkadir Ahemed Rahimkhan & another v County Government of Kwale & 5 others [2018] KEELC 4430 (KLR)", Case Analysis (2018). Notice of Motion dated 19th April 2017 (with cross-application dated 16th June 2017) in the suit over LR No. 4659 (Original No. 3855/19). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4430/eng@2018-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.