Ali Mohamed Sunkar v John Chege [2021] KEELC 1013 (KLR)
The bottom line
#A Nairobi court blocked a landlord from evicting a long-time occupier until the ownership dispute is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant has locus standi
The Applicant has locus standi; he has shown a claim against the suit property and a right to bring the action.
Applying Khelef Khalifa El-Busaidy and Jared Nyauma Ondieki, the court held that a claimant needs a legal interest, vested or contingent, above that of the public. The Applicant pleaded purchase, occupation since 2008, substantial permanent developments and a notice to vacate issued by Orbit Chemical Industries; this sufficed to establish a claim against the suit property for purposes of standing.
Whether the Applicant established a prima facie case with a probability of success
The court found the Applicant demonstrated a right apparently threatened with violation sufficient at the prima facie stage, without determining ownership.
Relying on Mrao Ltd and Nguruman, the court noted that at this stage no mini-trial is held and the applicant need not establish title, only a fair and bona fide question as to the right alleged. Though a title document is prima facie evidence of ownership under Section 26(1) of the Land Registration Act, the court could not determine ownership without a full hearing.
Whether the Applicant would suffer irreparable injury absent an injunction
Forceful eviction before the Applicant exhausts legal remedies would amount to substantial and irreparable loss not quantifiable in damages.
The court held it is only fair and justiciable to accord a party facing eviction an opportunity to exhaust all options provided in law to defend himself. Should the injunction be withheld, the substratum of the case would be destroyed and the loss could not be adequately compensated by an award of damages.
Where the balance of convenience lies
The balance of convenience tilts in favour of the applicant and the status quo should be maintained pending full hearing.
Applying the definition in Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court reasoned that preserving the status quo serves greater justice; disrupting it before hearing risks occasioning a greater injustice. The overriding objective requires the court to do justice to the parties with their interests on scales.
Legal principles established
#- Locus standi requires a legal interest, vested or contingent, in the subject matter before the court.
- The three Giella conditions for an interlocutory injunction are applied sequentially and the applicant must cross each hurdle.
- A prima facie case in civil cases is one where a right has apparently been infringed so as to call for an explanation from the opposite party.
Court orders
#- 1.Temporary injunction restraining the Respondent, his agents and/or servants from forcefully evicting the Applicant from land title Nairobi Block/263/1123 formerly plot number 132 Kwa Njenga Embakasi Sub County, Nairobi County pending hearing and determination of the application and of the main suit (prayers 2 and 3 of the Notice of Motion)
- 2.The defendant to move the containers in so far as they hinder access to the shops on the ground floor and the entrance to the building erected by the applicant
- 3.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Order 51 Rule 10 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali Mohamed Sunkar v John Chege [2021] KEELC 1013 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1013/eng@2021-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.