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ELCPartially AllowedNot stated in judgment· [2019] KEELC 4917 (KLR)

Habiba Nyambura Abdullahi v Sheikh Abdullahi Mohammed [2019] KEELC 4917 (KLR)

High Court of Kenya
22 January 2019
637 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The High Court stopped a landowner from renting out a Nairobi plot and ordered existing tenants out until the ownership dispute is decided.

What this practically means

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Executive summary

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This was an unopposed Notice of Motion dated 26th February 2018 brought by the plaintiff, Habiba Nyambura Abdullahi, under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 rules 1, 2 and 11 of the Civil Procedure Rules. She sought a temporary injunction restraining the defendant from leasing, letting or renting out the suit property to third parties, an order for eviction of parties already renting the property, police enforcement, and costs, all pending the hearing and determination of the suit. The defendant was served by substituted service through an advertisement in the Standard Newspapers of 7th December 2018 but filed no response, so the application proceeded unopposed. Applying the Giella vs Cassman Brown principles and the definition of a prima facie case in Mrao Limited vs First American Bank, and guided by Kenleb Cons Ltd on full disclosure and demonstration of a legal or equitable right, the court found that the plaintiff had demonstrated she was the allottee of the suit plot by the City Council of Nairobi, had established a prima facie case with probability of success, and would suffer irreparable loss not compensable by damages. The court granted a temporary injunction against leasing, letting or renting out the suit property, ordered all third parties in the property to vacate, directed the OCPD Buruburu to ensure compliance, and ordered that costs of the application abide the outcome of the main suit. Judgment was delivered in Nairobi on 22nd January 2019 by L. Komingoi J.

Key legal issues

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01

Prima facie case with probability of success

Holding

The plaintiff, as allottee of the suit plot by the City Council of Nairobi, demonstrated a prima facie case with a probability of success

Reasoning

The court considered the pleadings, the Notice of Motion and the supporting affidavit with annexures. Relying on Giella vs Cassman Brown and Mrao Limited vs First American Bank, the judge found that the plaintiff's documents showed she was the allottee of the suit plot by the City Council of Nairobi, satisfying the first Giella condition.

p. 1
02

Irreparable loss not compensable by damages

Holding

The plaintiff demonstrated she would suffer irreparable loss not compensable by damages if the orders were not granted

Reasoning

Applying the second Giella principle, the court was satisfied that the plaintiff would suffer irreparable loss that could not be adequately compensated by an award of damages if the injunction and eviction orders were withheld, warranting interlocutory protection of her rights over the suit property.

p. 2
03

Unopposed application and duty of full disclosure

Holding

The unopposed application succeeded because the applicant made full disclosure and showed a right requiring protection

Reasoning

The defendant was served by substituted service through an advertisement in the Standard Newspapers of 7th December 2018 and filed no response, leaving the application unopposed. Citing Kenleb Cons Ltd, the court required full disclosure and demonstration of a legal or equitable right; it was satisfied the plaintiff deserved injunctive protection.

p. 2

Legal principles established

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  • To succeed in an application for injunction an applicant must make full disclosure of all relevant facts and show a right, legal or equitable, requiring protection by injunction
  • A prima facie case in injunction applications is assessed per the Giella vs Cassman Brown principles

Court orders

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  1. 1.A temporary injunction restraining the defendant from leasing, letting and/or renting out the suit property to third parties pending the hearing and determination of the suit
  2. 2.An order directing all third parties already in the suit property to vacate pending the hearing and determination of the suit
  3. 3.The officer commanding police division Buruburu Nairobi County to ensure compliance of the above orders
  4. 4.Costs of the application to abide the outcome of the main suit
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51 rules 1, 2 and 11 of the Civil Procedure Rules

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, "Habiba Nyambura Abdullahi v Sheikh Abdullahi Mohammed [2019] KEELC 4917 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4917/eng@2019-01-22

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