Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 21st June 2019 (suit filed at Malindi ELC)· [2020] KEELC 813 (KLR)

Fiolabchem Company Limited & 2 others v Katana Ndule [2020] KEELC 813 (KLR)

Environment and Land Court
5 November 2020
JOJ. O. Olola
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Malindi Environment and Land Court refused to evict a long-standing occupier because the buyers' title claims were unclear and the land parcels no longer matched their documents.

What this practically means

#

Executive summary

#
The Plaintiffs, Fiolabchem Company Ltd, Abdirahman Maalim Abdullahi and Lawrence Musyoka Isikah, moved the court by Notice of Motion dated 21st June 2019 seeking an eviction order, vacant possession, a mandatory injunction compelling the Defendant to vacate, and a permanent injunction restraining trespass on parcels Kilifi/Mtondia/949 and 950 and sub-plots created from the original Kilifi/Mtondia/108. They claimed to have purchased the land in 2001 from Rosemary Auma Oile, whose caretaker the Defendant allegedly was, and complained that he had refused to vacate and had converted his portion into a quarry. The Defendant opposed, asserting occupation in his own right since 1975, an allocation by the Settlement Fund Trustees in 2011, allegations that the registrations were procured by mistake, misrepresentation or fraud, the existence of a related suit in Malindi ELC Case No. 17 of 2019, and limitation under Section 7 of the Limitation of Actions Act. The court applied the settled test for interlocutory mandatory injunctions from Kenya Breweries v Okeyo and Nation Media Group v Mwau, and Megarry J's caution in Shepherd Homes v Sandham. It found the Defendant's claim tenuous but the Plaintiffs' case equally tenuous: Kilifi/Mtondia/949 had been sub-divided into 39 parcels and no longer exists, while Kilifi/Mtondia/950 is registered in the name of Joshua Mutinda Kiteme, a non-party, and the 1st Plaintiff is a separate legal entity with no claim on the properties. The Motion was dismissed with costs to the Defendant.

Key legal issues

#
01

Threshold for interlocutory mandatory injunction

Holding

The threshold was not met; the application was dismissed

Reasoning

The court applied Kenya Breweries v Okeyo and Nation Media Group v Mwau, and the caution of Megarry J in Shepherd Homes v Sandham, that a mandatory injunction is more drastic than a prohibitory one and requires an unusually strong and clear case. The Defendant was on the land long before the 2001 purchase and disputed being a caretaker, so the case was not clear.

p. 3
02

Plaintiffs' title to the suit properties

Holding

The Plaintiffs' claim was tenuous: Kilifi/Mtondia/949 had been sub-divided into 39 parcels and no longer exists, and Kilifi/Mtondia/950 is registered in the name of Joshua Mutinda Kiteme, who is not a plaintiff

Reasoning

Official searches exhibited by the Defendant showed Joshua remained registered proprietor of Kilifi/Mtondia/950 and none of the 39 sub-parcels was registered in the name of the 1st Plaintiff, a separate legal entity with no claim on the suit properties.

p. 3

Legal principles established

#
  • An interlocutory mandatory injunction requires special and exceptional circumstances and a clear or unusually strong case

Court orders

#
  1. 1.The Motion dated 21st June 2019 is dismissed with costs to the Defendant

Authorities

#

Legislation

  • Limitation of Actions ActSection 7

Cases cited (3)

  • Kenya Breweries Ltd & Another -vs- Washington O. Okeyo
    (2002) eKLR
  • Nation Media Group Ltd & 2 Others -vs- John Harun Mwau
    (2014) eKLR
  • Shepherd Homes Ltd -vs- Sandham
    (1971) 1 Ch 340
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Fiolabchem Company Limited & 2 others v Katana Ndule [2020] KEELC 813 (KLR)", Case Analysis (2020). Notice of Motion dated 21st June 2019 (suit filed at Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/813/eng@2020-11-05

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