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ELCDismissed· [2021] KEELC 381 (KLR)

Khalid Hadi Ahmed & another v County Government of Mombasa [2021] KEELC 381 (KLR)

Environment and Land Court
8 December 2021
NMN.A. MATHEKA
1,249 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Mombasa's Environment and Land Court refused to stop demolition of buildings on contested Mombasa land, saying serious disputes about the title's legality must first be resolved at trial.

What this practically means

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Executive summary

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The Plaintiffs applied by Notice of Motion dated 4th October 2021, under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010, seeking temporary injunctions restraining the Defendant from demolishing permanent structures on Title Number MOMBASA/BLOCK XVI/1539 and from interfering with their peaceful occupation, both pending the application and pending the hearing of the main suit. The Plaintiffs explained that the suit property resulted from the 2019 consolidation of their two adjacent parcels, Mombasa/Block XVI/1300 and 1301, together with re-alignment of a 5-metre road, which process was approved by the County Government of Mombasa, the Ministry of Lands and Physical Planning, the National Land Commission and other agencies, for which they paid Kshs. 101,000/=, and culminating in issuance of a certificate of consolidation, an amended Registry Index Map and a new title. The Defendant opposed, contending that the applicants were claiming a road reserve of grabbed land earmarked for demolition, that the title and amalgamation were illegally issued, that the applicants had not come to court with clean hands, and that the suit was an abuse of process circumventing administrative procedure. Applying the Giella v Cassman Brown principles, the court held that the respondent's assertions raised triable issues which could not be resolved at the interlocutory stage, declined to grant the injunction, dismissed the application, and ordered costs to be in the cause.

Key legal issues

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01

Whether an interlocutory injunction should issue to restrain demolition of structures on the suit property

Holding

No, because the respondent raised triable issues regarding the legality of the title and consolidation, and the applicants failed to establish entitlement at this stage

Reasoning

The court applied the Giella v Cassman Brown principles. Although the plaintiffs claimed to be duly registered owners following an approved consolidation and road re-alignment, the respondent asserted the land was a road reserve, that the demolition was of plots earmarked for demolition, and that the title issuance was illegal. These contested questions of legality and land allocation could not be resolved on the papers and constituted triable issues warranting refusal of the interlocutory injunction.

p. 2

Legal principles established

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  • An interlocutory injunction is an equitable relief and may be declined where the applicant's conduct pertinent to the subject matter does not meet the approval of a court of equity

Court orders

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  1. 1.Application dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 2

Cases cited (1)

  • Giella vs Cassman Brown & Co Ltd
    1973 E.A 358
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, 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, "Khalid Hadi Ahmed & another v County Government of Mombasa [2021] KEELC 381 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/381/eng@2021-12-08

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