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ELCDismissedNot stated in the judgment (Notice of Motion dated 6th August 2018 in a suit concerning Plot Number 21188/I/MN)· [2019] KEELC 2076 (KLR)

Elizabeth Tembe Masha v Michael Arina Knight [2019] KEELC 2076 (KLR)

Environment and Land Court
30 July 2019
CYC.K. Yano
2,061 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed a landowner's bid to regain access to a plot, ruling she waited too long and could be compensated with money instead.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's Notice of Motion dated 6th August 2018, brought under Sections 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking a temporary injunction restraining the Defendant from constructing on, evicting her from, or dealing with Plot Number 21188/I/MN, and an order granting her and her family access to their house on the plot. The Plaintiff asserted over 32 years of occupation, a permanent house, crops, and family graves on the land, claiming title by adverse possession and asserting that the Defendant locked her out after her husband's funeral in 2016. The Defendant denied the Plaintiff ever occupied the plot, stating he purchased the former Plot 13585/I/MN from Zainab Haji in 2012, obtained change of user, was issued title in 2016, and subdivided the land into 43 plots, closing the original number. The court characterized the access order sought as a mandatory injunction, subject to a higher threshold than the Giella v Cassman Brown test, requiring special circumstances and a high sense of assurance, per Locabail. Finding that the Plaintiff conceded she had been out of occupation for over two years, that no prima facie case was established, that any loss was quantifiable in damages, and that the balance of convenience favoured the registered proprietor in possession, the court dismissed the application with costs to the Defendant.

Key legal issues

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01

Whether an interlocutory mandatory injunction restoring access to the suit property could issue

Holding

No - the Plaintiff failed to meet the higher standard for a mandatory injunction, having shown no special circumstances, no prima facie case, no irreparable harm, and the balance of convenience favouring the Defendant

Reasoning

The court distinguished the higher threshold for mandatory injunctions from the Giella principles. The Plaintiff conceded she had been out of occupation since 2016 with no explanation for the delay until filing in August 2018. Any loss was quantifiable in damages, and the Defendant, as registered proprietor in possession, held the balance of convenience. The Plaintiff's submissions on adverse possession were held irrelevant to the application as they addressed the main suit.

p. 3
02

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

Holding

No - the court found no prima facie case was established

Reasoning

The Plaintiff's claim of over 32 years' occupation was disputed by the Defendant, who pleaded the original plot was purchased from Zainab Haji in 2012, subdivided into 43 plots after change of user, and that Plot 21188/I/MN no longer existed. The Plaintiff conceded she was no longer in occupation and gave no explanation for the two-year delay between 2016 and filing the suit.

p. 3

Legal principles established

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  • An interlocutory mandatory injunction will not issue absent special circumstances and only in clear cases, requiring a higher standard of assurance than a prohibitory injunction
  • The Giella v Cassman Brown conditions govern applications for temporary injunctions

Court orders

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  1. 1.The Notice of Motion dated 6th August 2018 is dismissed with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4
  • Constitution of KenyaArticle 40

Cases cited (12)

  • Chevron (K) Ltd v Harrison Charo wa Shutu
    (2016) eKLR
  • Peter Mbiri Michuki v Samuel Mvau Michuki
    (2014) eKLR
  • Gulam Miriam Noordin v Julius Charo Karisa
    (2015) eKLR
  • Joseph Gachumi Kiritu v Lawrence Munyambu Kabura
  • Joseph Mutafari Situma v Nicholas Makhamu Cherongo
    (2007) eKLR
  • Maweu v Liu Ranching & Farming Cooperative Society
    (1985) KLR
  • Wambugu v Njuguna
    (1983) KLR 173
  • Vincent Koskei v Bernard Koskei
    (2018) eKLR
  • Mrao v First American Bank of Kenya Limited
    (2003) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Giella v Cassman Brown
    (1973) EA 358
  • Locabail International Finance Ltd v Agro Export & Another
    (1986) IALL 901
Jurisdiction invoked
Sections 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules

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, "Elizabeth Tembe Masha v Michael Arina Knight [2019] KEELC 2076 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 6th August 2018 in a suit concerning Plot Number 21188/I/MN). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2076/eng@2019-07-30

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