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ELCPartially AllowedNot stated in the excerpt (Environment and Land Court suit at Mombasa)· [2019] KEELC 4180 (KLR)

Aniello Storelli v Damaris Mwongeli & another [2019] KEELC 4180 (KLR)

Environment and Land Court
13 March 2019
CYC.K. Yano
2,018 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court froze the situation on disputed Kwale land, keeping each side where a site visit found them until the case is fully heard.

What this practically means

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Executive summary

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The plaintiff, Aniello Storelli, brought two notices of motion (dated 19th February 2018 and 18th April 2018) seeking temporary injunctions restraining the defendants from interfering with his possession and cultivation of KWALE/WAA/932 and KWALE/WAA/1206, and from constructing or developing houses and villas on those properties and several GALU KINONDO plots. He contended he had purchased the suit properties and registered them in the defendants' names, had been in possession and cultivation, and that the defendants were constructing villas and alienating the properties in breach of existing interim orders, notably the order of 12th June 2015 (Omollo, J) restraining disposal of the suit properties. The defendants opposed, arguing the applications were res judicata, sub judice, an abuse of process and defective; that the plaintiff disobeyed court orders and came with unclean hands; and that no prima facie case or irreparable harm was shown. Both sides filed written submissions. The court, C.K. Yano, J, directed itself by the Giella v Cassman Brown principles and the purpose of temporary injunctions, noting the site visit by the Deputy Registrar on 20th July 2018 which confirmed the plaintiff overseeing cultivation on the Waa farms and the 1st defendant pointing out the Galu Kinondo plots. Holding that the 12th June 2015 preservation order remained in force and should not be rendered vain, the court declined to grant the injunctions in the precise terms sought and instead ordered that status quo as confirmed by the site visit report dated 23rd July 2018 be maintained pending hearing and determination of the suit, with costs in the cause.

Key legal issues

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01

Whether the applications were res judicata or sub judice

Holding

The court did not sustain the res judicata/sub judice objection; it proceeded to determine the applications on their merits in the context of the existing preservation order

Reasoning

The court noted the earlier order of 12th June 2015 restraining disposal of the suit properties was still in force, and the 2nd defendant was joined only on 10th May 2017. Rather than treating the applications as barred, the court considered that preservation of the properties remained necessary so that the earlier order would not be rendered vain, and framed relief as maintenance of status quo.

p. 2
02

Whether the applicant satisfied the Giella v Cassman Brown principles for temporary injunction

Holding

The court applied the Giella principles but, on the facts (including the Deputy Registrar's site visit report), granted preservation of status quo rather than a conventional injunction

Reasoning

The court directed itself that injunctions are discretionary equitable reliefs and that at the interlocutory stage disputed facts are not determined finally. The site visit showed the plaintiff overseeing cultivation on the Waa properties and the 1st defendant controlling the Galu Kinondo plots; the status quo so confirmed was preserved pending trial.

p. 2

Legal principles established

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  • Temporary injunctions are granted where there is evidence of immediate danger to property by sale or other disposition, the purpose being to preserve the status quo
  • Where an existing preservation order is in force and the suit properties are at risk of disposal, the court will issue orders that preserve rather than render the prior order vain

Court orders

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  1. 1.That status quo as confirmed by the site visit report dated 23rd July 2018 be maintained pending the hearing and determination of the suit
  2. 2.That costs of the proceedings shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rules 1(a) and 4; Order 45 Rule 1; Order 51 Rule 1
  • Practice Directions on proceedings in the Environment and Land CourtParagraph 20
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (7)

  • Uhuru Highway Development Limited -v- Central Bank of Kenya & 2 Others
    (1996) eKLR
  • Heritage Insurance Company Ltd -v- Patrick Kasina Kisitu
    (2015) eKLR
  • Joseph Gichuhi and Another -v- Agnes Mwenesi Siteka
  • Joseph Makarious -v-s Benardicat Escalambo & Another
  • John Bosco Ngeta Maundu -v- William Wambua Kiwia & 3 Others
  • Noormolhammed Janmohammed -v- Kassam Ali Virji Madhani
    (1953) 20 IRK 8
  • Giella -v- Cassman Brown Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1(a) and 4, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules; Paragraph 20 of the Practice Directions on proceedings in the Environment and Land Court; Article 159(2)(d) of the Constitution

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, "Aniello Storelli v Damaris Mwongeli & another [2019] KEELC 4180 (KLR)", Case Analysis (2019). Not stated in the excerpt (Environment and Land Court suit at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4180/eng@2019-03-13

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