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ELCDismissedNotice of Motion dated 11th July 2019 (suit particulars not stated in the extract)· [2020] KEELC 1297 (KLR)

Abubakar Hussein Sadik v Christian Muchiri Mburu [2020] KEELC 1297 (KLR)

Environment and Land Court
25 September 2020
1,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Plot No. Lamu/Lake Kenyatta/11/363, moved the court by Notice of Motion dated 11th July 2019 for a temporary injunction restraining the Defendant from excavating, harvesting soil, constructing permanent structures or trespassing on the suit property pending trial. The Plaintiff averred that a 2003 sale of the land to the Defendant was rescinded after the Land Control Board consent was not obtained due to family objections, that he refunded the purchase price, and that the Defendant nonetheless refused to vacate and was developing and excavating the land. The Defendant opposed, asserting he purchased and had occupied the land since 2003, denying any rescission or refund, and contending the Plaintiff's title was procured unprocedurally. Applying the Giella-style triple test as articulated in Mrao Ltd v First American Bank of Kenya Ltd and Nguruman Limited v Jan Bonde Nielsen, the court found the Plaintiff had not demonstrated a prima facie case: the only evidence of the refund was a cheque from Kenya Post Office Savings Bank Ltd addressed to Omwancha & Company Advocates, with nothing linking it to the Plaintiff, the refund, or the Defendant. The Defendant had been in possession and use of the land since 2003, so no material right requiring urgent protection was shown. The court held the questions of rescission and ownership would be determined at trial and declined to disturb the status quo. The application was dismissed with costs on 25th September 2020.

Key legal issues

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01

Whether a prima facie case was established

Holding

No prima facie case was established; the Plaintiff failed to demonstrate the alleged rescission of the 2003 sale agreement and refund of the purchase price

Reasoning

The Plaintiff relied only on a cheque from Kenya Post Office Savings Bank Ltd addressed to Omwancha & Company Advocates, with no proof it emanated from him, constituted the refund, or that the advocates acted for the Defendant. The Defendant had occupied the land since 2003 under the sale agreement, so no clear and unmistakable right needing urgent protection was shown.

p. 2
02

Irreparable injury and balance of convenience

Holding

Having found no prima facie case, the court found no material right over the property in need of urgent protection and declined to interfere with the parties' possession since 2003

Reasoning

The Defendant had been in possession and occupation of the suit property since 2003 under the sale agreement and had undeniably been using the land. The court held the parties would have an opportunity at trial to demonstrate whether the agreement was rescinded and who owns the land; in the interim it would not disturb the status quo.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case, demonstrate irreparable injury, and show the balance of convenience lies in his favour
  • A prima facie case is more than an arguable case and requires evidence of an infringement of a right and probability of success at trial

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 11th July 2019 seeking a temporary injunction is dismissed
  2. 2.Costs of the application to the Defendant

Authorities

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Cases cited (2)

  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Nguruman Limited –v-s Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property (not expressly cited in the extract)

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, "Abubakar Hussein Sadik v Christian Muchiri Mburu [2020] KEELC 1297 (KLR)", Case Analysis (2020). Notice of Motion dated 11th July 2019 (suit particulars not stated in the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1297/eng@2020-09-25

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