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ELCDismissedNot stated in judgment (Notice of Motion dated 17th August 2018)· [2019] KEELC 985 (KLR)

Said Mwinyikai Tomas & 2 others v John Njoroge Mungai & another [2019] KEELC 985 (KLR)

Environment and Land Court
1 October 2019
CYC.K. Yano
1,780 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to evict Diani Beach occupants before trial, because both sides held title deeds and final ownership disputes belong at the full hearing.

What this practically means

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Executive summary

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The plaintiffs, relying on a title deed issued on 7th September 2017 traced through a sub-division of KWALE/DIANI BEACH BLOCK/168 and transmission orders in Kadhi's Court Succession Cause No. 209 of 2017 at Kwale, moved the court by Notice of Motion dated 17th August 2018 seeking a temporary injunction restraining the defendants from developing or occupying KWALE/DIANI BEACH BLOCK/1456, and an order for eviction and demolition of a perimeter wall, supervised by the OCS Diani Police Station. The defendants opposed, asserting that the 2nd defendant, wife of the 1st defendant, holds title issued on 17th February 2011, having acquired the property from Beach Properties Limited with Land Control Board consent, and that they have been in possession, erecting a perimeter wall in July 2018 and digging a borehole in 2012. The court applied the Giella principles and, for the mandatory injunction, the higher standard in Locabail and the Court of Appeal's decision in Olive Mwihaki Mugenda, which discourages granting final relief at interlocutory stage. Since both parties claim ownership and hold titles, the court held that the question of genuine ownership must await trial. The plaintiffs failed to establish a prima facie case, irreparable injury, and the balance of convenience favoured the defendants in occupation. The Notice of Motion was dismissed with each party bearing their own costs, delivered at Mombasa on 1st October 2019.

Key legal issues

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01

Whether the plaintiffs met the Giella test for a temporary injunction

Holding

They did not; no prima facie case, no irreparable injury, and the balance of convenience favours the defendants in occupation

Reasoning

Both parties claim ownership and each holds title deeds in their respective names, so the dispute as to the genuine owner cannot be resolved on the application. The defendants are in possession and have developed the property. The plaintiffs showed no irreparable harm since eviction and demolition remain available if they succeed at trial.

p. 3
02

Whether an interlocutory mandatory injunction for eviction and demolition could issue

Holding

No; mandatory injunctions at interlocutory stage require special circumstances and a high sense of assurance, and the orders sought amount to final relief

Reasoning

Citing Locabail and the Mugenda decision, the court held that final relief such as eviction and demolition should not be granted at interlocutory stage where ownership is disputed and both parties hold titles. The question of the genuine title is reserved for the full hearing.

p. 3

Legal principles established

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  • The standard for granting an interlocutory mandatory injunction is higher than that for a prohibitory injunction; final relief should not be granted at the interlocutory stage except in exceptional circumstances with recorded reasons
  • Balance of convenience may rest with a party in possession and occupation where the claimant cannot establish a prima facie case

Court orders

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  1. 1.The Notice of Motion dated 17th August 2018 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Environment and Land Court ActSections 3, 13(1), (2), (3), (7), 18, 19
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3, 10; Order 51
  • Civil Procedure ActSection 63(c)

Cases cited (6)

  • Giella –v- Cassman Brown & Co
    (1973) EA 358
  • Locabail International Finance Ltd –v- Agro Export & Another
    (1986) 1 ALL ER 901
  • Olive Mwihaki Mugenda & Another –v- Okiya Omtata Okoiti & 4 Others
    (2016) eKLR
  • Ashok Kumar Bajpai –v- Dr. (Smt) Ramjama Bajpai
    AIR 204, ALL 107, 2004 (1) AWC 88
  • Vivo Energy Kenya Limited –V- Maloba Petrol Station Limited and 3 Others
    (2015) eKLR
  • Stephen Kipkebut t/a Riverside Lodge and Rooms –v- Naftali Ogola
    (2019) eKLR
Jurisdiction invoked
Sections 3, 13(1), (2), (3), (7), 18, 19 of the Environment and Land Court 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, "Said Mwinyikai Tomas & 2 others v John Njoroge Mungai & another [2019] KEELC 985 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 17th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/985/eng@2019-10-01

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