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ELCDismissedNot stated in the judgment (Constitutional Petition filed 10 December 2019, Mombasa)· [2020] KEELC 2815 (KLR)

Mariam Ndiaku Abdalla & 550 others v Hakika Transporters Limited & 6 others [2020] KEELC 2815 (KLR)

Environment and Land Court
15 April 2020
MSMUNYAO SILA
2,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa dismissed a land injunction because the claimants never sued the registered owner of the property they were fighting over.

What this practically means

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Executive summary

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The petitioners, claiming to have occupied Original Plot Number 423/I/MN since time immemorial, filed a constitutional petition on 10 December 2019 seeking declarations that they have proprietary interest in the land, that title issue in their favour, compensation, and protection from eviction. Together with the petition they sought an interlocutory injunction restraining the respondents from harassing, evicting them, or dealing with the land, and registration of a caution. The 1st respondent denied holding title or any interest in the land, while the 3rd to 7th respondents raised a preliminary objection that the suit is res judicata, citing earlier suits between similar parties. The court declined to determine the preliminary objection, holding the material filed too sketchy to make a conclusive res judicata finding and leaving the respondents free to file a proper striking-out application. On the injunction, the court applied the Giella v Cassman Brown principles. It found no prima facie case: the petitioners had not sued the registered proprietor of the land, the 1st respondent had denied title under oath, the building plans produced named a non-party and different plots, and the petitioners' own NLC report cast doubt on whether they occupy the land. The court also declined to grant the final declarations sought at an interlocutory stage. The application for injunction was dismissed with costs, the petition continuing to hearing without injunctive protection.

Key legal issues

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01

Res judicata on a preliminary objection

Holding

No finding made; the material filed was too sketchy to determine the plea

Reasoning

The respondents relied on previous suits but did not annex full pleadings or decisions of the High Court and Court of Appeal. With such limited material the court could not conclusively find the suit res judicata, and directed the respondents to mount a proper striking-out application with all relevant material.

p. 2
02

Whether an injunction could issue

Holding

No; the petitioners failed to establish a prima facie case

Reasoning

The petitioners had not sued the registered proprietor of Original Plot 423/I/MN or its subdivisions; the 1st respondent denied holding title or interest, and the petitioners produced only building plans naming a non-party over different plots. Their own NLC report also raised doubt whether they occupy or could link themselves to the land.

p. 3
03

Whether final declarations could be granted at interlocutory stage

Holding

No; such orders await a full trial

Reasoning

The application sought declarations of proprietary interest and issuance of title, which are final relief. A court does not ordinarily grant final orders at an interlocutory stage, so all prayers except the injunction were set aside for determination after the hearing of the suit.

p. 2

Legal principles established

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  • A claimant seeking title to land must sue the registered proprietor of that land
  • The Giella v Cassman Brown principles govern interlocutory injunctions

Court orders

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  1. 1.The application for injunction is dismissed with costs
  2. 2.No finding made on the plea of res judicata; respondents at liberty to file an appropriate application to strike out the suit supported by all relevant material
  3. 3.The prayers for declaration of proprietary interest and other final orders disregarded at this stage

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 28

Cases cited (8)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Kalume Machaku Mavuo & Others vs Gladys Njenga Kagiri & 42 Others
    Mombasa HCCC No. 164 of 2010
  • Kalume Machaku Mavuo & Others vs Gladys Njenga Kagiri & 42 Others
    Civil Appeal No. 126 of 2012
  • Aboubakar Katana Pekeshe & Others v Gladys Njenga Kagiri & Others
    Mombasa HCCC No. 44 of 2017
  • Kalume Machaku Mavuo & Others vs Gladys Njenga Kagiri & Others
    Mombasa HCCC No. 46 of 2014 (OS)
  • Kalume Machaku Mavuo, Mariamu Thiakuu Abdalla & 524 Others vs Gladys Njeri Njenga Kagiri & 45 Others
    ELC No. 164 of 2010 (OS)
  • Kalume Machaku Mavuo, Mariamu Thiakuu Abdalla & 524 Others vs Gladys Njeri Njenga Kagiri & 45 Others
    ELC No. 46 of 2014 (OS)
  • High Court at Mombasa, Petition No. 69 of 2012
Jurisdiction invoked
Constitutional petition (not stated in the judgment)

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, "Mariam Ndiaku Abdalla & 550 others v Hakika Transporters Limited & 6 others [2020] KEELC 2815 (KLR)", Case Analysis (2020). Not stated in the judgment (Constitutional Petition filed 10 December 2019, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2815/eng@2020-04-15

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