Canarian Holdings Ltd v Mohamed Said Abdulrehman [2019] KEELC 1622 (KLR)
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
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
Yes; the Plaintiff is the registered lessee and the dispute over breach of the lease requires judicial consideration at a full hearing
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.
Whether the Plaintiff would suffer irreparable damage not compensable in damages
Yes; forfeiture before determination may see the suit property alienated, destroying the substratum of the suit
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.
Where the balance of convenience lies
It tilts in favour of the Plaintiff to safeguard the prevailing status quo pending hearing
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.
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.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.Costs of the Application shall be in the cause
- 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.