Sofia Kassim Salimu v Chief Land Registrar, Mombasa & 3 others [2020] KEELC 1124 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether mandatory orders (mandamus/mandatory injunction) could issue on the material presented
No. The case was not clear: serious questions existed as to ownership of the suit land, and the petitioner lacked capacity to claim for all beneficiaries. Mandatory interlocutory relief requires a very clear case.
The search of 24 April 2013 showed the registered owners as Juma Bin Salim Juma and Abdulla Bin Salim Bin Juma as trustees of a Wakf, not Kassim Salim Juma. The deed of settlement only gave Kassim Salim Juma Muhunzi a right to income, not ownership, and was not signed by the Wakf Commissioners, who remained trustees. The petitioner held a power of attorney only from Hadija Kassim Salim, not from the other beneficiaries. The court therefore could not order reconstitution of the parcel file or payment to the petitioner at the interlocutory stage.
Whether an interlocutory injunction should issue to stop road construction through the suit land
No. Applying Giella vs Cassman Brown, no irreparable loss beyond damages was shown and the balance of convenience, informed by public interest, favoured allowing the road construction to proceed.
The compensation money was already transferred by KENHA to the NLC and held in a special compensation account attracting interest under Section 117 of the Land Act, so the petitioner can be compensated by damages/interest. Stopping the road would cause financial damage to the public and deny them use of the road. Public interest overrode the petitioner's private rights while ownership was sorted out.
Legal principles established
#- A mandatory injunction on an interlocutory application may only be granted in clear cases, where the court feels a high degree of assurance that at trial the injunction would appear to have been rightly granted — a higher standard than for a prohibitory injunction.
- Where compensation funds are placed in a special compensation account under Section 115 of the Land Act pending proof of ownership, the landowner suffers no irreparable loss since the money will attract interest, and public interest in infrastructure construction overrides private rights.
Court orders
#- 1.The application dated 18 March 2020 is dismissed with costs to the 3rd respondent
- 2.The Wakf Commissioners of Kenya be enjoined to the suit as interested party, being trustees of the Wakf of Salim Bin Juma Muhunzi
- 3.Either party to serve the Wakf Commissioners with the order of joinder and the pleadings filed within 7 days
- 4.The Wakf Commissioners, upon service, have 14 days to file any affidavit assisting the court, including on the Wakf and the whereabouts of the original title
- Jurisdiction invoked
- Articles 40, 47, 43, 27 and 28 of the Constitution of Kenya, 2010 (constitutional petition under the Environment and Land Court's jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sofia Kassim Salimu v Chief Land Registrar, Mombasa & 3 others [2020] KEELC 1124 (KLR)", Case Analysis (2020). Constitutional Petition No. 5 of 2017 (application dated 18 March 2020) — Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1124/eng@2020-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.