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ELCDismissedNotice of Motion dated 8th May 2019 (suit over MOMBASA BLOCK XVIII/243)· [2020] KEELC 1754 (KLR)

Khadija Askew (Suing as the administrator and representative of the estate of the Late Kassim Khamisa) v Yusuf Musa Khamisa & 4 others [2020] KEELC 1754 (KLR)

Environment and Land Court
13 July 2020
2,026 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

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A Mombasa court refused to protect a family heir's claim over a Mombasa property because evidence of a religious trust (Wakf) created disputes that only a full trial can resolve.

What this practically means

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Executive summary

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The plaintiff, Khadija Khamisa Askew, moved the court by Notice of Motion dated 8th May 2019 under Order 40 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a temporary injunction restraining the defendants from selling, alienating, wasting or disposing of MOMBASA BLOCK XVIII/243, an order that rents be paid into a joint interest-earning account, and eviction of the defendants from the property pending the hearing of the suit. She claimed entitlement to the property as a grandchild and beneficiary of the late Mohamed Khamisa, the initial registered proprietor, and alleged the defendants had unlawfully taken possession and collected rent since January 2004. The 1st to 3rd defendants responded that the original proprietors had transferred two-thirds shares to third parties and consecrated all shares to a Wakf, of which the 2nd and 3rd defendants are the duly registered trustees, so the property is not available for succession. The 5th defendant described himself as a tenant paying rent to the 4th defendant as agent and a Wakf beneficiary. Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao Ltd v First American Bank, the court found the documentary evidence of the Wakf and registered trustees raised triable issues that cannot be resolved at the interlocutory stage; the applicant therefore failed to establish a prima facie case. Any loss of rent was compensable in damages, negating irreparable harm. The mandatory relief of eviction required special circumstances and a higher degree of assurance per Locabail International Finance Ltd v Agro Export, which were absent; the applicant also sought final orders at an interlocutory stage. The Notice of Motion was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff established a prima facie case with probability of success

Holding

No - documentary evidence of the Wakf and registered trustees raised issues only resolvable at full hearing

Reasoning

The plaintiff claimed entitlement as heir of the initial registered proprietor, but the defendants exhibited transfers of two-thirds of the property and consecration of all shares to a Wakf with the 2nd and 3rd defendants as current trustees. The plaintiff denied the Wakf, but such disputed issues cannot be resolved at interlocutory stage and are for the full hearing.

p. 2
02

Whether irreparable harm not compensable in damages was shown

Holding

No - rental income from the property is ascertainable and quantifiable

Reasoning

The court held that any loss of rent from the suit property can be calculated and compensated by an award of damages, so the second Giella limb was not satisfied.

p. 3
03

Whether a mandatory injunction in the form of eviction could issue at interlocutory stage

Holding

No - special circumstances absent and the applicant sought final orders at interlocutory stage

Reasoning

Applying Locabail International Finance Ltd v Agro Export, a mandatory injunction requires special circumstances and a higher degree of assurance. The defendants had managed the property for years; the applicant's case was neither strong nor clear, and the eviction sought amounted to final relief at an interlocutory stage.

p. 3

Legal principles established

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  • The Giella v Cassman Brown principles govern interlocutory injunctions: prima facie case, irreparable damage, balance of convenience.
  • A mandatory interlocutory injunction requires special circumstances and a higher degree of assurance than a prohibitory injunction.

Court orders

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  1. 1.The Notice of Motion dated 8th May 2019 is dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure ActSection 3A

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Locabail International Finance Ltd v Agro Export & Others
    (1986) 1 ALL ER 901
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Khadija Askew (Suing as the administrator and representative of the estate of the Late Kassim Khamisa) v Yusuf Musa Khamisa & 4 others [2020] KEELC 1754 (KLR)", Case Analysis (2020). Notice of Motion dated 8th May 2019 (suit over MOMBASA BLOCK XVIII/243). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1754/eng@2020-07-13

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