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ELCAllowedMombasa ELC suit over Plot Sub-Division No.6227/6827 (Original No.172/2) Section II Mainland North (interlocutory application dated 17th March 2017)· [2018] KEELC 4589 (KLR)

Mohamed Hassan Ali & 4 others v Rukia Hassan & 3 others [2018] KEELC 4589 (KLR)

Environment and Land Court
8 February 2018
CYC. Yano
1,631 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 temporarily stopped family members from building on or selling disputed inherited land until the full case decides who owns which portion.

What this practically means

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Executive summary

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The Plaintiffs, trustees managing Plot Sub-Division No.6227/6827 (Original No.172/2) Section II Mainland North on behalf of the heirs of the late Ali Bin Nguma whose shares were determined in Mombasa Kadhi's Succession Cause No.158 of 2007, sought a temporary injunction restraining the Defendants from trespassing, wasting, alienating or interfering with their occupation of the property. They alleged the 1st and 4th Defendants had sold their portions and encroached on other heirs' shares, constructing a semi-permanent house, perimeter wall and open garage on the 1st Plaintiff's portion, and that the 2nd and 3rd Defendants were strangers to the estate. Each Defendant filed a replying affidavit denying the claims: the 1st Defendant challenged the 1st Plaintiff's letters of administration, allegedly subject of a forgery charge in Criminal Case No.360 of 2017 at Shanzu Law Courts; the 2nd Defendant claimed allocation of a parcel by the County Government of Mombasa from a former road reserve; the 3rd and 4th Defendants asserted they had built within their late father's plot no.167/6827. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court held that the acts complained of were not denied and only their location was disputed, a matter for trial. Finding a prima facie case, potential irreparable loss not quantifiable in damages, and the balance of convenience favouring the Plaintiffs, the court granted a temporary injunction in terms of prayer 3, with costs in the cause given the family nature of the dispute.

Key legal issues

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01

Whether the Plaintiffs met the Giella v Cassman Brown threshold for an interlocutory injunction

Holding

The Plaintiffs established a prima facie case with a probability of success, potential irreparable damage not quantifiable in damages, and the balance of convenience tilted in their favour

Reasoning

The court found the acts complained of were not denied; the only dispute was whether the Defendants were acting on their own portions or the Plaintiffs', an issue triable only at full trial. Until established, the status quo should be maintained. The Defendants' uncontroverted constructions could change the status of the property in a way damages could not remedy.

p. 3
02

Whether the Defendants had encroached on the 1st Plaintiff's portion of the suit property

Holding

The complaint was that the acts were on the wrong portion; the court found this could only be ascertained at trial and preserved the status quo

Reasoning

Both sides agreed the structures were built, but disputed on which parcel. The 1st and 3rd Defendants claimed they built on their late father's plot (no.6827/167), while the Plaintiffs claimed encroachment on the portion allocated to the 1st Plaintiff. Resolution required viva voce evidence at trial.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with a probability of success, irreparable damage, and failing which the court decides on the balance of convenience
  • A prima facie case is more than an arguable case and must show an infringement of a right and the probability of the applicant's case upon trial

Court orders

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  1. 1.Temporary injunction granted in terms of prayer 3 of the amended Notice of Motion dated 17th March 2017, restraining the Defendants from trespassing onto, committing acts of wastage, alienating or interfering with the Plaintiffs' quiet and peaceful occupation of the suit property pending the hearing and determination of the Application and the suit
  2. 2.Costs of the Application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 42, 69, 70
  • Civil Procedure RulesOrders 40 and 51

Cases cited (2)

  • Giella –v- Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd –vs- First American Bank of Kenya Ltd
    (2003) eKLR
Jurisdiction invoked
Articles 42, 69 and 70 of the Constitution and Orders 40 and 51 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, "Mohamed Hassan Ali & 4 others v Rukia Hassan & 3 others [2018] KEELC 4589 (KLR)", Case Analysis (2018). Mombasa ELC suit over Plot Sub-Division No.6227/6827 (Original No.172/2) Section II Mainland North (interlocutory application dated 17th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4589/eng@2018-01-08

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