Nicholas Mkoma Mkali & 253 others v Yahya Mohamed Suleiman & 2 others [2019] KEELC 4523 (KLR)
The bottom line
#A Malindi court protected 254 squatters from eviction pending their adverse possession claim, ruling a past Kadhi's Court succession case didn't block their land suit.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / jurisdiction in respect of Kadhi's Court Succession Cause No. 143 of 2014
The Preliminary Objection fails because the Plaintiffs were not parties to the Kadhi's Court proceedings and the Kadhi's Court lacks jurisdiction over an adverse possession claim
The court found the parties before it were not the same as those in the Kadhi's Court succession cause, as the Defendants themselves admitted in the Replying Affidavit (the consent judgment did not cover the Plaintiffs). Further, Kadhi's Court jurisdiction is constitutionally confined to Muslim law on personal status, marriage, divorce or inheritance, and nothing showed the adverse possession claim fell within that ambit. The objection was therefore misconceived.
Whether an interlocutory injunction should issue pending trial of the adverse possession claim
A prohibitory injunction issued in the terms sought, the court holding the order sought was in substance prohibitory despite being termed 'mandatory'
Applying the Giella principles, the court found the Plaintiffs had demonstrated to a certain degree that they had been residing on the suit property, with photographs of demolished buildings not denied by the Defendants, and title extracts showing registration history. Pending an enquiry into whether their stay acquired rights by adverse possession, it was fair to restrain the Defendants, but the Plaintiffs were barred from new construction.
Nature of the order sought - mandatory vs prohibitory injunction
Although the Plaintiffs termed the order 'mandatory', the court read it as seeking a prohibitory injunction
The court examined the orders sought - restraining demolition, fencing, threats of eviction and trespass pending hearing - and concluded these were in substance prohibitory. It therefore applied the settled Giella -vs- Cassman Brown conditions for interlocutory injunctions rather than the stricter test for mandatory injunctions at interlocutory stage.
Legal principles established
#- For res judicata to be raised and upheld, five elements must be satisfied conjunctively: the matter directly and substantially in issue in a former suit between the same parties or those under whom they claim, litigating under the same title, heard and finally determined by a competent court
- The jurisdiction of Kadhi's Courts is limited to questions of Muslim law relating to personal status, marriage, divorce or inheritance where all parties profess the Muslim religion and submit to that jurisdiction
- A prima facie case in civil cases is more than an arguable case; the evidence must show an infringement of a right and a probability of success upon trial
- A claim for orders by adverse possession is made by originating summons supported by an affidavit with a certified extract of title annexed
Court orders
#- 1.A prohibitory injunction granted in the terms of Prayer No. 4 of the Notice of Motion dated 23rd November 2017, restraining the Defendants from removing/destroying houses/structures, erecting fences, threatening the Plaintiffs with harm and eviction, trespassing onto or otherwise dealing with the suit property pending the hearing and determination of the matter
- 2.The Plaintiffs restrained from constructing and/or establishing any new houses on the suit properties pending the hearing and determination of the suit
- 3.Preliminary Objection by the 1st and 2nd Defendants dismissed as misconceived and without any basis in law
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; res judicata objection considered under Section 7 of the Civil Procedure Act and Article 170(5) of the Constitution (Kadhi's Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Mkoma Mkali & 253 others v Yahya Mohamed Suleiman & 2 others [2019] KEELC 4523 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 23rd November 2017 and Preliminary Objection dated 8th December 2017 in Originating Summons proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4523/eng@2019-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.