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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with probability of success
No - documentary evidence of the Wakf and registered trustees raised issues only resolvable at full hearing
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.
Whether irreparable harm not compensable in damages was shown
No - rental income from the property is ascertainable and quantifiable
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.
Whether a mandatory injunction in the form of eviction could issue at interlocutory stage
No - special circumstances absent and the applicant sought final orders at interlocutory stage
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 8th May 2019 is dismissed
- 2.Costs of the application to the defendants
- Jurisdiction invoked
- Order 40 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.