Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMombasa CMCC No. 2314 of 2015 (appeal therefrom)· [2020] KEELC 763 (KLR)

Daniel Kyusya Muthami v Mohamed Mutsongi & 2 others [2020] KEELC 763 (KLR)

Environment and Land Court
1 October 2020
CYC.K. Yano
1,548 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Mombasa court refused to protect a land buyer's plot on appeal because he waited two months to act and couldn't show he'd suffer irreparable harm.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determined a Notice of Motion dated 26th September 2019 by Daniel Kyusya Muthami, the appellant in an appeal against the dismissal of his claim in Mombasa CMCC No. 2314 of 2015 over plot 830/ORG/155/MN/II at Concordia, Vikwatani area. He sought an interlocutory injunction restraining the three respondents from trespassing on, constructing on, selling or dealing with the plot pending the hearing and determination of the appeal, claiming he had purchased the plot in 2005 from Mbaraka Ali. The respondents, who claimed to have purchased a portion of the larger Concordia Plot No.830/II/MN from Shehi Murisa Kumbi in 2014, opposed the application, citing unexplained delay and lack of an arguable appeal. The court framed two issues: whether there was delay in filing the application, and whether the appellant had demonstrated a prima facie case for an injunction pending appeal. The court found an unexplained delay of about two months between the judgment of 30th July 2019 and the filing of the application on 27th September 2019, which alone justified dismissal. On the merits, the appellant had not attached the judgment appealed against, preventing assessment of a prima facie case, and the claimed loss - potential demolition costs - was recoverable and did not amount to substantial loss. The application was dismissed with costs to the respondents.

Key legal issues

#
01

Unexplained delay in filing the application

Holding

Delay of about two months between judgment and application was unexplained and alone warranted dismissal

Reasoning

The application was filed on 27th September 2019, about two months after the judgment of 30th July 2019. The appellant made no attempt to explain the delay in the supporting affidavit and did not file a supplementary affidavit even after the issue was raised by the respondents. The court held that on that ground alone the application must fail.

p. 2
02

Prima facie case and substantial loss for injunction pending appeal

Holding

The appellant failed to establish a prima facie case or substantial loss; the risk of incurring demolition costs was recoverable and not irreparable

Reasoning

The appellant did not attach the judgment appealed against, making it impossible for the court to assess the basis of dismissal and whether a prima facie case was demonstrated. The apprehension about demolition costs was unconvincing because the respondents could be ordered to demolish at their own cost and demolition costs could be recovered if the appeal succeeded.

p. 2

Legal principles established

#
  • An appellate court may grant a temporary injunction pending appeal where appellate procedure has been complied with
  • A party seeking an injunction pending appeal must show substantial loss - that without the injunction the respondents' actions will irreparably negate the essential core of the applicant's success; recoverable costs do not constitute such loss

Court orders

#
  1. 1.The notice of motion dated 26th September, 2019 is dismissed with costs to the respondents

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rule 1 & 2
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSections 1A, 1B and 3A
On appeal from
Chief Magistrate's Court, Mombasa
Mombasa CMCC No. 2314 of 2015
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules; appellate jurisdiction over the subordinate court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Daniel Kyusya Muthami v Mohamed Mutsongi & 2 others [2020] KEELC 763 (KLR)", Case Analysis (2020). Mombasa CMCC No. 2314 of 2015 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/763/eng@2020-10-01

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