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ELCPartially AllowedNotice of Motion dated 11th October, 2019 in the main suit (Mombasa Environment and Land Court)· [2019] KEELC 151 (KLR)

Freedom Limited v Omar Awadh Mbarak [2019] KEELC 151 (KLR)

Environment and Land Court
14 November 2019
CYC.K. Yano
1,299 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 froze the sale and development of disputed land until trial, confirming judges can go beyond the classic injunction rules to prevent greater injustice.

What this practically means

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Executive summary

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This was a ruling on the defendant's Notice of Motion dated 11th October 2019 seeking an interlocutory injunction restraining the plaintiff from subdividing, fencing, alienating, selling, charging, leasing or developing the suit property, Plot No. 287 of Section V, C.R. Number 6302 (about 983 acres), pending the hearing and determination of the suit. The defendant, Omar Awadh Mbarak, claimed entitlement as a beneficiary of the estate of his deceased grandfather, Mbarak Awadh Salim, who allegedly purchased the property from Mohamed Afzal Khan, and complained that the plaintiff was constructing a wall and permanent structures and demonstrating an intention to subdivide and dispose of the property while the suit was pending. The plaintiff, through a replying affidavit sworn by Harji Govind Ruda, opposed the application as an abuse of process, pointing out that the parties had on 2nd October 2018 agreed to forego interlocutory applications in favour of the hearing of the main suit, which was part-heard on 22nd January 2019 and 17th May 2019 and scheduled for further hearing on 14th November 2019. The plaintiff also questioned the authenticity of the defendant's documents, in respect of which the defendant faces criminal charges, and asserted it had been in possession with works ongoing since 2012/2013. Citing Suleiman v Amboseli Resort Ltd, Justice C.K. Yano held that the court is not confined to the three Giella v Cassman Brown principles and may apply the overriding objective and the lower-risk-of-injustice approach. Finding both parties claiming the same property, the court held it fair to maintain the status quo. The application was allowed to the extent that the plaintiff was restrained from selling, alienating, subdividing, or carrying out new developments or constructions, including erecting a new boundary wall, until the suit is determined. Costs were reserved to the cause.

Key legal issues

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01

Whether an interlocutory injunction should issue to preserve the suit property pending determination of the part-heard suit

Holding

The application was allowed to the extent necessary to maintain the status quo: the plaintiff was restrained from selling, alienating, subdividing or carrying out new developments or constructions, including erecting a new boundary wall, until the suit is determined.

Reasoning

The court noted the suit is part-heard and the parties had earlier agreed to forego interlocutory applications in favour of the main hearing. Both parties claim the suit property. Applying the flexible approach in Suleiman v Amboseli Resort Ltd, the court held it fair to safeguard and maintain the status quo rather than risk a greater injustice if the property were pre-empted by alienation, disposal or waste during the pendency of the suit.

p. 2
02

Whether the court is strictly bound by the Giella v Cassman Brown principles in granting interlocutory relief

Holding

No; the court may look at the general circumstances and the overriding objective, adopting the lower-risk-of-injustice principle.

Reasoning

Relying on Suleiman v Amboseli Resort Ltd (Ojwang Ag. J) and the English case of Films Rover International, the court accepted that the Giella tests remain basic but a further intrinsic test applies: in responding to prayers for interlocutory relief the court should always opt for the lower rather than the higher risk of injustice. This justified granting status quo preservation at the interlocutory stage.

p. 2

Legal principles established

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  • In dealing with an application for an interlocutory injunction, the court is not necessarily bound only by the three Giella v Cassman Brown principles; it may look at the circumstances of the case generally and the overriding objective, opting for the lower risk of injustice.
  • Where parties have agreed to forego interlocutory applications in favour of the hearing of the main suit, a fresh interlocutory application that delays the part-heard suit will be viewed against that understanding.

Court orders

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  1. 1.The plaintiff is restrained from selling, alienating, subdividing and carrying out any new developments or constructions, including erecting a new boundary wall, until the case is heard and determined
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Not expressly cited by name; the judgment refers to the overriding objective of the lawnot stated

Cases cited (3)

  • Giella –v- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Suleiman –v- Amboseli Resort Ltd
    (2004) KLR 589
  • Films Rover International
    (1986) 3 ALL ER 772
Jurisdiction invoked
Not expressly stated; the court exercised its interlocutory injunction jurisdiction over a dispute relating to suit property (Plot No. 287 of Section V, C.R. Number 6302)

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, "Freedom Limited v Omar Awadh Mbarak [2019] KEELC 151 (KLR)", Case Analysis (2019). Notice of Motion dated 11th October, 2019 in the main suit (Mombasa Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/151/eng@2019-11-14

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