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ELCAllowedNot stated in the judgment (Notice of Motion dated 8th May 2019)· [2020] KEELC 3153 (KLR)

Hamisi Kazungu Kalume v Rita Hellen Lesiamito [2020] KEELC 3153 (KLR)

Environment and Land Court (Mombasa)
25 February 2020
CYC.K. Yano
945 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A spouse registered as joint owner of Kenyan property cannot be evicted before a court fully settles who owns it.

What this practically means

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Executive summary

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The plaintiff, Hamisi Kazungu, moved the court by Notice of Motion dated 8th May 2019 seeking a temporary injunction restraining the defendant, Rita Hellen Lesiamito, from leasing, evicting or interfering with his quiet use, occupation and possession of Plot No. 4136/III/MN in Mtwapa, Kilifi, pending hearing of the suit. The parties are a separated husband and wife. The plaintiff asserted that the property was acquired and registered jointly during the marriage and developed as the matrimonial home, and that the defendant obtained police-assisted eviction orders in the Chief Magistrate's Court on the misrepresentation that he was a tenant in arrears. The defendant admitted the marriage but produced a decree nisi in divorce proceedings, contending she acquired the property before marriage and was duped into joint registration; she claimed the plaintiff occupied as a tenant under an oral lease at Kshs.36,000 per month, and that her eviction attempts were pursuant to a valid court order. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court held that ownership could not be resolved at the interlocutory stage, but that the plaintiff's status as joint registered owner established a prima facie case with a probability of success. It further held that eviction before resolution of ownership would cause irreparable, unquantifiable loss, and the balance of convenience favoured maintaining the status quo. The court allowed the motion in terms of prayers (3) and (4) and, given the parties' relationship, ordered each party to bear their own costs.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

A joint registered owner of suit property establishes a prima facie case against eviction pending full hearing.

Reasoning

Both parties claim ownership; the property is registered in their joint names. The plaintiff showed his right as a joint registered owner. Ownership disputes cannot be resolved at the interlocutory stage and remain for the full hearing, but the demonstrated proprietary right suffices for the first Giella test.

p. 1
02

Irreparable damage and balance of convenience

Holding

Eviction before resolution of ownership would cause unquantifiable loss, and the balance of convenience favours maintaining the status quo.

Reasoning

The court found that eviction prior to determination of ownership would cause loss not quantifiable in damages. It therefore tilted the balance of convenience towards the plaintiff to preserve the status quo pending hearing and determination of the suit.

p. 2

Legal principles established

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  • A prima facie case is one in which, on the material presented, the court concludes there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal.

Court orders

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  1. 1.Notice of Motion dated 8th May 2019 allowed in terms of prayers (3) and (4), i.e. a temporary injunction restraining the defendant from leasing, evicting the plaintiff or interfering with his quiet use, occupation and possession of Plot No. 4136/III/MN pending hearing and determination of the suit
  2. 2.Each party to bear his/her own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 45(3)
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 7; Order 51 Rules 1, 3 & 15

Cases cited (2)

  • Giella – v Cassman Brown & Co.
    (1973) EA 358
  • Mrao Ltd –v- First American Bank of Kenya
    (2000) KLR 125
Jurisdiction invoked
Article 45(3) and 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 7 and Order 51 Rules 1, 3 & 15 of the Civil Procedure Rules

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, "Hamisi Kazungu Kalume v Rita Hellen Lesiamito [2020] KEELC 3153 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 8th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3153/eng@2020-02-25

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