Fatuma Ahmed Mohammed & another v Charles Mwangi Gitundu [2019] KEELC 4048 (KLR)
The bottom line
#A Kenyan land court refused an injunction but froze the disputed property's status quo to keep an appeal meaningful.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellants established a prima facie case with probability of success to warrant an interim injunction pending appeal
No prima facie case was established; the injunction was overtaken by events since the Appellants had been evicted and the land subdivided, but the substratum of the appeal was preserved via a status quo order
The Respondent is the registered proprietor with a title deed, and the suit land has since been subdivided and no longer exists as originally described. The Appellants were already evicted and the Respondent is in occupation. Applying the Giella v Cassman Brown principles as restated in Thomas Mumo Mangey (adopting Nguruman Limited), the court found the Appellants failed at the first limb of establishing a prima facie case, so irreparable injury and balance of convenience need not be considered. However, since an appeal was pending, the court deemed it pertinent to preserve the substratum of the suit by ordering maintenance of the status quo pending the appeal's outcome.
Legal principles established
#- Establishment of a prima facie case alone is insufficient for an interlocutory injunction; the applicant must also show irreparable injury not compensable by damages, and if prima facie case fails, the other Giella limbs need no consideration
- Where an appeal is lodged against a decision affecting land in dispute, the court may preserve the substratum of the suit by maintaining the status quo even where an injunction is refused
Court orders
#- 1.Status quo of all that suit property known as KAJIADO/OLE KASASI/549, which was subdivided into LR. KAJIADO/OLE KASAI/1181 to 1193, be maintained pending the outcome of the Appeal
- 2.Costs to be in the cause
- 3.Appellants to file a Record of Appeal within 90 days from the date of the order, after which the Appeal should be set down for directions
- On appeal from
- Chief Magistrate's Court, Kajiado (Senior Principal Magistrate)
- Kajiado CMCC No. 154 of 2014
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Sections 13, 16A, 26(4) of the Environment and Land Court Act; Section 152E of the Land Act; Section 3A of the Civil Procedure Act; Order 40 Rules 1, 4 & 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fatuma Ahmed Mohammed & another v Charles Mwangi Gitundu [2019] KEELC 4048 (KLR)", Case Analysis (2019). Appellants' Amended Notice of Motion dated 14th November 2018 ( Appeal pending from Kajiado CMCC No. 154 of 2014 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4048/eng@2019-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.