Karisa & 67 others v Haji & 18 othes (Sued in their capacity as the beneficiaries to the Estate of Ahmed Bin Haji Barawa) [2021] KEELC 1709 (KLR)
The bottom line
#A Mombasa court refused landowners' bid for a fresh injunction because an existing one protecting the possession claimants was still in force.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants/Applicants established a prima facie case with a probability of success
They failed. A genuine dispute over ownership cannot be resolved at interlocutory stage, and an existing injunction in favour of the Plaintiffs was still in force; the Applicants admitted they did not wish to set it aside but instead sought fresh preservation orders without following Order 40 Rule 7.
The court applied Giella v Cassman Brown and the definition of a prima facie case in Mrao Ltd v First American Bank. Ownership was the substantive matter unfit for interlocutory determination. It was undisputed the Plaintiffs were in actual physical possession, and a temporary injunction of 22nd January 2021 in their favour remained operative. The Applicants, by their own admission, did not seek to discharge, vary or set aside that order under Order 40 Rule 7, so the court could not issue fresh, overlapping injunctive orders.
Whether the remaining Giella conditions (irreparable injury, balance of convenience) required consideration
No. Because the first condition failed and the conditions are sequential, the court did not venture into the other two grounds.
Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society and Hassan Huri v Abdulrazak Huri Ibrahim, the court held that the Giella conditions are applied sequentially, so failure to satisfy the first condition disposes of the application without considering irreparable harm or the balance of convenience.
Legal principles established
#- The conditions for grant of an interlocutory injunction are considered sequentially; failure on the first (prima facie case) means the court need not consider the remaining conditions
- An existing injunction order remains in force unless discharged, varied or set aside by the court on application by a dissatisfied party; a court should not heap interlocutory orders one upon another
Court orders
#- 1.The Notice of Motion application dated 5th May, 2021 by the Defendants/Applicants dismissed with costs to the Plaintiffs/Respondents
- 2.Parties directed to strictly adhere with the temporary injunction orders of 22nd January, 2021 to preserve the suit land pending hearing and final determination of the main suit
- 3.Parties to fix the suit for mention within fourteen (14) days for pre-trial conference and directions under Order 37 Rule 16 and Order 11 of the C.P.R.
- Jurisdiction invoked
- Order 40 Rules 1 & 2 of the Civil Procedure Rules, 2010 (interlocutory injunction application in an Originating Summons for adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karisa & 67 others v Haji & 18 othes (Sued in their capacity as the beneficiaries to the Estate of Ahmed Bin Haji Barawa) [2021] KEELC 1709 (KLR)", Case Analysis (2021). ELC No. 88 of 2016 (re-filed; Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1709/eng@2021-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.