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ELCAllowedNotice of motion dated 3rd November 2017 (case number not stated in judgment)· [2019] KEELC 4322 (KLR)

Aliakber Amiruddin Chakera v Asitbhai T Huseein & 3 others [2019] KEELC 4322 (KLR)

Environment and Land Court
7 March 2019
AOA. Omollo
935 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Mombasa court blocked the sale of jointly owned Mombasa land, confirming no co-owner can sell others' shares without consent.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 3rd November 2017 brought by the plaintiff under Order 40 of the Civil Procedure Rules seeking an interlocutory injunction restraining the defendants from alienating, selling, charging, leasing, transferring or otherwise dealing with land parcel MOMBASA/BLOCK XV/147 pending the hearing of the suit. The application was prompted by the advertisement of the property for auction by the 4th defendant (an auctioneer instructed by the 2nd defendant) on 4th November 2017. The 4th defendant replied that she acted for a disclosed principal and was wrongly sued, and that the execution process was lawful following the dismissal of appeal HCCA No 10 of 2014. The 2nd defendant opposed the motion as an abuse of court process, pointing to prior objection proceedings in Kadhi's Court Civil Case No 1'A' of 2007, and argued no prima facie case had been shown, blaming non-payment of rental income. The court found it undisputed that the suit plot was jointly owned by the plaintiff and the defendants' family, and that prior findings by the Kadhi and Justice Thande in HCCA No 10 of 2014 confirmed the defendants' family owned only a 1/3 share. Yet the entire property was advertised for sale without the plaintiff's consent. The court held that lack of consent constituted prima facie evidence of probability of success, and that non-payment of rent could not entitle a co-owner to dispose of others' shares. On abuse of process, the court held the Kadhi lacked jurisdiction over land ownership disputes and the current dispute was distinct from the succession cause. The court confirmed the temporary injunction in terms of prayer 3, with costs in the cause.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

A prima facie case with a probability of success was established since the 2nd defendant advertised the entire property for sale although only a 1/3 share was owned by the defendants' family, and the plaintiff was not consulted.

Reasoning

The court noted the undisputed joint ownership of the suit plot, the Kadhi's Court and HCCA findings that the defendants' family owned only 1/3 share, and the advertisement of the entire property for auction without consulting the other registered owners. The absence of consent showed the suit had a probability of success.

p. 2
02

Abuse of court process / res judicata-like objection

Holding

The current suit is not an abuse of process; the dispute over ownership of land is different from the Kadhi's succession cause and should be ventilated in this claim.

Reasoning

The prior objection proceedings in Kadhi's Court case No 1'A' of 2007 concerned distribution of an estate of one of the registered owners. Since the Kadhi lacks jurisdiction over land ownership disputes, filing an objection there would serve no purpose; the present dispute is distinct and properly before this court.

p. 2

Legal principles established

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  • A co-owner cannot sell or dispose of the shares of other registered owners without their consent; lack of consent supports a prima facie case for injunction.
  • The Kadhi's Court lacks jurisdiction to hear and determine disputes over ownership of land.
  • Non-payment of rental income does not entitle a co-owner to dispose of other shareholders' interests.

Court orders

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  1. 1.Confirmed the temporary orders of injunction in terms of prayer 3 of the motion, restraining the defendants from alienating, selling, charging, leasing, transferring, wasting, disposing of or dealing with parcel MOMBASA/BLOCK XV/147 pending the hearing and determination of the suit
  2. 2.Costs of the motion ordered in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40

Cases cited (1)

  • Hasham Tarmohamed Hussein & Another vs Asitbhai T. Hussein (Kadhi's Court Civil case No 1'A' of 2007)
Jurisdiction invoked
Original jurisdiction under Order 40 of the Civil Procedure Rules (injunctions); court also references Kadhi's Court proceedings and HCCA No. 10 of 2014 as background only

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, "Aliakber Amiruddin Chakera v Asitbhai T Huseein & 3 others [2019] KEELC 4322 (KLR)", Case Analysis (2019). Notice of motion dated 3rd November 2017 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4322/eng@2019-03-07

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