Said Bin Seif Properties (2016) Limited v Sharifa Ahmed Busaidy & another [2019] KEELC 435 (KLR)
The bottom line
#A Kenyan landowner won the right to stop a tenant's new construction on their plot, but the tenant can keep living there until trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants were entitled to a temporary injunction restraining the defendant from further development on the suit property
Yes. The applicants, as registered owners with a certificate of title, established a prima facie case with probability of success, irreparable injury not compensable in damages, and the balance of convenience favoured them.
The court applied the Giella v Cassman Brown principles. The applicants produced a certificate of title conceded by the respondent. The respondent's interest was limited to the house without land, which he admitted demolishing. New constructions, including a boundary wall, could not be undertaken without the applicants' consent. Continued development would alter the status of the property pending trial.
Whether the respondent could be restrained from occupying the suit property
No, at the interlocutory stage. The respondent is in occupation under the house without land purchased from the previous owner, subject to ground rent; evicting him would be a mandatory injunction reserved for trial.
The court distinguished occupation from further development. Since the respondent's occupation flows from the purchased house without land, restraining occupation would effectively grant final relief (mandatory injunction or eviction) before trial, which the court declined to do.
Legal principles established
#- A tenant under a house without land cannot carry out new constructions on the owner's land without the owner's consent
- An interim order that effectively grants the final relief sought (mandatory injunction or eviction) cannot be granted at interlocutory stage
Court orders
#- 1.Temporary injunction granted restraining the respondent from any further development and/or constructions on PLOT NO. MOMBASA/BLOCK XLV/246 pending hearing and determination of the suit
- 2.Refusal to restrain the respondent from occupation, as he is already in occupation pursuant to the house without land purchased from the previous owner; the issue of occupation to await the outcome of the suit
- 3.Costs of the application in the cause
- Jurisdiction invoked
- Article 40 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1(a), 2, 4(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Bin Seif Properties (2016) Limited v Sharifa Ahmed Busaidy & another [2019] KEELC 435 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 16th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/435/eng@2019-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.