Fauza Oscar Meuli Suing as the Administrator of the Estate of Aisha Ali Mohamed v Gideon Nassim Kiti & another [2019] KEELC 3395 (KLR)
The bottom line
#A Mombasa landowner lost an urgent bid to stop a neighbour using disputed plots, because long occupation and weak evidence meant no case for an injunction.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection based on limitation of actions should succeed
The preliminary objection fails because limitation cannot be decided on submissions alone without evidence.
The Defendant argued that the claim was time-barred under Section 7 of the Limitation of Actions Act since encroachment occurred in 1998. The court held that when the cause of action arose is a factual question requiring appropriate process or trial determination, and cannot be resolved through evidence from the bar or submissions. The objection was therefore rejected.
Whether the Plaintiff met the Giella conditions for a temporary injunction
The Plaintiff failed to establish a prima facie case with probability of success or irreparable harm.
Given the Defendant's long possession since 1998 and the Defendant's pending counter-claim for a declaration of adverse possession, the court found on the affidavit evidence that the Plaintiff had not established a prima facie case with probability of success, nor irreparable harm not compensable in damages.
Whether a mandatory injunction to demolish structures should issue at the interlocutory stage
No mandatory injunction granted; the relief sought amounts to final relief and no special circumstances exist.
The application sought demolition orders that mirror final relief in the plaint. Citing Locabail and the Court of Appeal in Lucy Wangari Gachara and Mugenda v Omtata, the court applied the higher standard for interlocutory mandatory injunctions, requiring special circumstances and clear cases, none of which was demonstrated.
Legal principles established
#- A preliminary objection on limitation cannot be determined merely through submissions or evidence from the bar; the issue of when the cause of action arose should be decided at trial.
- A mandatory injunction at the interlocutory stage requires special circumstances and the clearest of cases, applying a higher standard than for a prohibitory injunction.
Court orders
#- 1.The Notice of Motion dated 19th November 2018 is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Order 51 Rule 1, Order 40 Rule 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fauza Oscar Meuli Suing as the Administrator of the Estate of Aisha Ali Mohamed v Gideon Nassim Kiti & another [2019] KEELC 3395 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3395/eng@2019-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.