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ELCDismissedNot stated in the judgment· [2021] KEELC 183 (KLR)

Hassan Swaleh Mohsin & 2 others v Abdul Karuri & 3 others [2021] KEELC 183 (KLR)

Environment and Land Court
16 December 2021
4,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By an application dated 15 November 2021, the Plaintiffs sought a temporary injunction maintaining status quo over a 100ft by 100ft portion of L.R. No. 209/2378, Pumwani, Nairobi - the site of their burnt-down 8-roomed house - and restraining the Defendants from trespassing, selling, transferring, fencing, building or dealing with the property, pending the hearing and determination of an intended appeal to the Court of Appeal. The intended appeal challenges the court's judgment of 28 October 2021 dismissing the Plaintiffs' suit for adverse possession and permanent injunction. The Defendants did not participate in the application. The court framed three issues: whether it retained jurisdiction to grant an injunction after dismissing the substantive suit; what conditions apply; and whether the Plaintiffs met them. Relying on Order 42 Rule 6(6) of the Civil Procedure Rules, 2010, Madhupaper International v Kerr and Eustace Kagau Kangerwe, the court held it possessed the requisite jurisdiction. However, it held that the grant of such an injunction is discretionary and not automatic: the applicant must establish a prima facie appeal, sufficient cause, prospects of success and apprehended irreparable loss. The Plaintiffs conceded the premises were destroyed by fire in 2015 and that they vacated, and the property is registered in the Defendants' names; per Nguruman, restraining a registered proprietor requires special, peculiar and exceptional circumstances, which were not shown. The court dismissed the application with no orders as to costs.

Key legal issues

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01

Jurisdiction to grant a temporary injunction pending appeal after dismissing the substantive suit

Holding

The court is seized of jurisdiction to grant an injunction pending an intended appeal pursuant to Order 42 Rule 6(6) of the Civil Procedure Rules, 2010.

Reasoning

The court relied on the express wording of Order 42 Rule 6(6), which confers power on the High Court in its appellate jurisdiction to grant a temporary injunction where the procedure for instituting the appeal has been complied with. The court traced the rule to the Court of Appeal's decision in Eustace Kagau Kangerwe, which explained that the Western College bar on post-judgment injunctions was overruled by Madhupaper International, while the principle requiring amendment of the rules before such power existed was resolved by the 2010 rules.

p. 5
02

Conditions for granting a temporary injunction pending appeal

Holding

The grant is discretionary, not automatic; the applicant must establish pre-requisite conditions including a prima facie appeal, sufficient cause, chances of success and apprehension of irreparable loss.

Reasoning

Order 42 Rule 6(6) confers the power but does not enumerate conditions. Reading Madhupaper International, the court held that an injunction pending appeal does not issue as of right and would be refused where the appeal is frivolous or where greater hardship would be inflicted. The grant is left to judicial discretion exercised in light of various circumstances, including the appeal's prospects and irreparable loss.

p. 5
03

Whether the Plaintiffs fulfilled the conditions

Holding

The Plaintiffs failed to establish sufficient cause, a prima facie appeal or exceptional circumstances to justify restraining the registered owners from dealing with their property.

Reasoning

The Plaintiffs conceded that the suit premises were destroyed by fire in 2015, that they vacated, and that the Defendants demolished the remnants and took away building materials. They therefore had been forced out and could not show a prima facie case or sufficient cause. The suit property belongs to and is registered in the names of the Defendants; restraining a registered proprietor requires special, peculiar and/or exceptional circumstances, per Nguruman, which the Plaintiffs did not avail.

p. 6

Legal principles established

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  • The High Court (Environment and Land Court) has jurisdiction under Order 42 Rule 6(6) of the Civil Procedure Rules to grant a temporary injunction pending an intended appeal even after dismissing a suit that included a claim for permanent injunction.
  • The grant of a temporary injunction pending appeal is discretionary and not automatic; the applicant must establish conditions such as chances of success of the appeal, a prima facie case, sufficient cause and apprehension of irreparable loss.
  • It is a serious thing to restrain a registered proprietor of property over what is undeniably his; the claimant must show special, peculiar and/or exceptional circumstances before such an order can issue.
  • The absence of opposition to an application does not relieve the applicant of the burden of establishing the conditions for the relief sought.

Court orders

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  1. 1.The Plaintiffs' application dated the 15th of November 2021 is dismissed
  2. 2.There shall be no orders as to costs
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules, 2010 (with reference to Article 48 of the Constitution, 2010)

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, "Hassan Swaleh Mohsin & 2 others v Abdul Karuri & 3 others [2021] KEELC 183 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/183/eng@2021-12-16

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