Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 18th December 2018 (ELC suit, Mombasa)· [2019] KEELC 1622 (KLR)

Canarian Holdings Ltd v Mohamed Said Abdulrehman [2019] KEELC 1622 (KLR)

Environment and Land Court
25 September 2019
2,430 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Mombasa court blocked forfeiture of a 99-year Mombasa lease, ruling the tenant showed a strong enough case to keep the property untouched until trial.

What this practically means

#

Executive summary

#
The Plaintiff, registered as lessee of Subdivision Number 3071 (Original Number 2419/5) of Section VI Mombasa Mainland North for a 99-year term from 1st July 1963 under a lease arising from the Wakf of the late Sheikh Ali Al'Amin Bin Ali, moved the court by notice of motion dated 18th December 2018 seeking a stay of a notice of forfeiture dated 1st November 2018 and temporary injunctions restraining the Defendant, the newly appointed attorney of the Wakf, from forfeiting the lease or interfering with its quiet possession. The Plaintiff said it had paid all rent due from 2012 to 2062 (Kshs.371,863.90) after its prior attorney stopped receiving rent, and that no notice to rectify breach preceded the forfeiture notice. The Defendant admitted the lease but alleged breaches: subletting to Kenya Oil Company Limited and charging the property to Diamond Trust Bank without written consent, and non-payment of rent since 2012, contending acceptance of rent did not waive forfeiture under Section 73(3) of the Land Act. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court held the Plaintiff had established a prima facie case with probability of success, that forfeiture before trial could alienate the property and destroy the substratum of the suit causing irreparable loss, and that the balance of convenience favoured the Plaintiff. The motion dated 18th December 2018 was allowed in terms of prayer 4, granting an injunction pending the hearing and determination of the suit, with costs in the cause.

Key legal issues

#
01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes; the Plaintiff is the registered lessee and the dispute over breach of the lease requires judicial consideration at a full hearing

Reasoning

The court noted it was not in dispute that the Plaintiff is the registered proprietor as lessee. The question of which party is in breach of the lease could not be resolved at the interlocutory stage and required judicial consideration at a full hearing. Considering the lease's 1963 commencement, 99-year term and its terms and conditions, the court held the Plaintiff had established a prima facie case with probability of success.

p. 3
02

Whether the Plaintiff would suffer irreparable damage not compensable in damages

Holding

Yes; forfeiture before determination may see the suit property alienated, destroying the substratum of the suit

Reasoning

The court reasoned that if the notice of forfeiture took effect before the suit was heard, the suit property might be alienated and the substratum of the suit destroyed, causing irreparable loss not quantifiable in damages. Failure to preserve the status quo would render final orders nugatory and jeopardise the Applicant's right to occupation.

p. 3
03

Where the balance of convenience lies

Holding

It tilts in favour of the Plaintiff to safeguard the prevailing status quo pending hearing

Reasoning

The court held that preserving the status quo was necessary so that any final orders would not be rendered nugatory. Preserving the property and the Applicant's right to occupation pending determination of the main suit weighed the balance of convenience in the Plaintiff's favour.

p. 3

Legal principles established

#
  • The Giella v Cassman Brown principles govern interlocutory injunctions: prima facie case with probability of success, irreparable damage not compensable by damages, and balance of convenience if in doubt
  • A prima facie case is one in which on the material presented the tribunal concludes there exists a right apparently infringed so as to call for an explanation or rebuttal from the opposite party

Court orders

#
  1. 1.The notice of motion dated 18th December 2018 is allowed in terms of prayer 4 thereof, being an injunction pending the hearing and determination of the suit restraining the Defendant or any person claiming through the Wakf from forfeiting the Plaintiff's lease over, evicting or interfering with the Plaintiff's quiet possession of Subdivision Number 3071 (Original Number 2419/5) of Section VI Mombasa Mainland North
  2. 2.Costs of the Application shall be in the cause

Authorities

#

Legislation

  • Environment and Land Court ActSections 13(1), (2), (7)(a) & (i) and 19
  • Land Act No. 6 of 2012Sections 73, 75 and 76 (and s.73(3) referenced by Defendant)
  • Civil Procedure RulesOrders 40 and 51

Cases cited (2)

  • Giella –v- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd –v- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Section 13(1), (2), (7)(a) & (i) and 19 of the Environment and Land Court Act, 2011; Sections 73, 75 and 76 of the Land Act No. 6 of 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Canarian Holdings Ltd v Mohamed Said Abdulrehman [2019] KEELC 1622 (KLR)", Case Analysis (2019). Notice of Motion dated 18th December 2018 (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1622/eng@2019-09-25

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