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ELCDismissedMombasa ELC Case (Notice of Motion dated 1st April 2019)· [2020] KEELC 765 (KLR)

Kensington Limited v Naomi Monda [2020] KEELC 765 (KLR)

Environment and Land Court
12 October 2020
CYC.K. Yano
1,265 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner lost its bid to block a rival's use of a Mombasa plot because it ignored an existing court judgment favouring the other side.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (C.K. Yano, J) determined a Notice of Motion dated 1st April 2019 in which the plaintiff sought a temporary injunction to restrain the defendant from trespassing on, developing, selling, letting, disposing of or otherwise dealing with property known as MOMBASA/BLOCK IX/362 pending the hearing of the suit. The plaintiff, through the affidavit of its director Mayes Shah, asserted it was the registered owner of the suit property and that on 26th March 2019 the defendant unlawfully pulled down its fence and invaded the plot. In opposition, the defendant deposed that she occupies and does business on Title No. MOMBASA/BLOCK IX/348, that the suit land forms part of the former 'Jua Kali area' allocated to her, and that the same dispute had previously been litigated in Mombasa ELC Case No. 236 of 2013 – Naomi Ngare v Municipal Council of Mombasa and James Titus Kisia – in which judgment was delivered in her favour on 20th June 2019 after the plaintiff company was joined in place of Kisia, who had transferred the land to the plaintiff. Applying the Giella v Cassman Brown principles and the Mrao Ltd definition of a prima facie case, the court held that the plaintiff failed to establish a prima facie case with probability of success, since it did not deny the existence of the judgment and decree in the defendant's favour or show they had been set aside. Damages would adequately compensate the plaintiff, and the balance of convenience favoured the defendant. The application was dismissed with costs on 12th October 2020, delivery being virtual due to the COVID-19 pandemic.

Key legal issues

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Whether the plaintiff established a prima facie case with a probability of success for a temporary injunction over MOMBASA/BLOCK IX/362

Holding

No prima facie case was established because there exists an unchallenged judgment and decree in Mombasa ELC Case No. 236 of 2013 in favour of the defendant, which the plaintiff did not show had been set aside

Reasoning

The plaintiff relied on its certificate of title, but the defendant demonstrated prior litigation over the same property in which judgment was entered in her favour on 20th June 2019. The plaintiff did not deny the existence of that judgment and decree, nor produce evidence that it was set aside. The plaintiff also did not challenge the defendant's averment that she occupies and does business on Title No. MOMBASA/BLOCK IX/348, not the suit property. Damages would adequately compensate the plaintiff, and the balance of convenience favours the defendant.

p. 2

Legal principles established

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  • The conditions for the grant of a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience if in doubt
  • A prima facie case is one in which, on the material presented, the court concludes there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal

Court orders

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  1. 1.The Notice of Motion dated 1st April 2019 is dismissed with costs

Authorities

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Cases cited (2)

  • Giella –v- Cassman Brown & Company Limited
    (1973)EA 358
  • Mrao Ltd –v- American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)

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, "Kensington Limited v Naomi Monda [2020] KEELC 765 (KLR)", Case Analysis (2020). Mombasa ELC Case (Notice of Motion dated 1st April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/765/eng@2020-10-12

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