Suleiman Kuweah Gakuria & another v Douglas Mwangi & 4 others [2021] KEELC 351 (KLR)
The bottom line
#Landowners in Mombasa won a court order stopping people building on their property until the dispute is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs/Applicants met the Giella v Cassman Brown criteria for a temporary injunction
Yes – the Applicants established a prima facie case by producing a Certificate of Lease and proof of payment of rates, demonstrated irreparable injury not compensable by damages, and the balance of convenience tilted in their favour.
The court applied the Giella principles. The Applicants produced an official search dated 4th July, 2021 showing them as registered owners of the suit property and evidence of payment of rates and rent to the County Government of Mombasa. The Defendants did not challenge the title, only claiming to be artisans engaged to renovate toilets. The court found the Applicants stood to lose the land through continued trespass and construction, an injury not quantifiable in damages, and preserved the property pending full hearing.
Whether the suit was res judicata or sub judice vis-à-vis ELC No. 178 of 2020
No – the requirements of Sections 6 and 7 of the Civil Procedure Act were not satisfied because the parties in the two suits are different and the earlier suit has not been heard and finally determined.
The court set out the ingredients of res judicata under Section 7, including that the issue was heard and finally determined in a former suit between the same parties or their privies litigating under the same title. ELC No. 178 of 2020 was an originating summons by Mohamed Mohammed Mwabungare seeking adverse possession against different parties, and it remained undetermined. The Defendants in this suit were not parties to that suit. The preliminary objection therefore failed.
Legal principles established
#- Res judicata requires that the parties and the issues be the same and that the former suit was heard and finally determined; the mere fact that two suits concern the same subject matter does not bar the later suit.
- The foundation of the jurisdiction to issue injunctions is the probability of irreparable injury, inadequacy of pecuniary compensation and prevention of multiplicity of suits.
Court orders
#- 1.The Notice of Motion application dated 13th July, 2021 by the 1st & 2nd Plaintiffs/Applicants is allowed but only in terms of prayers numbers 2 and 5 of the said application
- 2.The Preliminary Objection dated 14th September, 2021 by the Defendants is bereft of merit and is dismissed with costs to the 1st & 2nd Plaintiffs/Applicants
- 3.The suit to be fixed for full hearing within the next ninety (90) days on a priority basis
- 4.Mention on 17th February, 2022 for compliance and case management, including Pre Trial Conference under Order 11 of the Civil Procedure Rules, 2010
- 5.Costs of the application to be borne by the 1st, 2nd and 3rd Defendants/Respondents
- Jurisdiction invoked
- Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dzombo & 2 others v KCB Bank Kenya Limited[2023] KEELC 20474 (KLR)2 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "Suleiman Kuweah Gakuria & another v Douglas Mwangi & 4 others [2021] KEELC 351 (KLR)", Case Analysis (2021). ELC No. 178 of 2021 (Mombasa) – Notice of Motion dated 13th July, 2021 and Preliminary Objection dated 14th September, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/351/eng@2021-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.