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ELCDismissedNotice of Motion dated 6th August 2021 (E&L Court, Nairobi)· [2021] KEELC 1972 (KLR)

Issa Ahmed & 15 others v Mohamed Al-Sawae [2021] KEELC 1972 (KLR)

Environment and Land Court
21 September 2021
EWE. K. Wabwoto
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan residents lost their injunction bid over a badly worded application, not the merits of their land dispute.

What this practically means

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Executive summary

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The six plaintiffs, residents of Ushirika Gated Apartments on Parcel No. Nairobi Block/104/519 (registered May 1989 as a planned estate of dwelling maisonettes), moved the Environment and Land Court by Notice of Motion dated 6th August 2021 seeking a temporary injunction restraining the defendant from felling the perimeter wall, encroaching onto common estate parts, and developing 15 high-rise structures of 120 units on the parcel. The application was unopposed, no response having been filed, and counsel for the plaintiffs urged the court to grant the prayers sought. Judge E. K. Wabwoto identified the substantive prayer as one seeking an inter-parties temporary injunction 'pending the hearing and determination of this Application'. The court held that such a prayer, once the application was heard and determined, would be spent and amount to no more than hot air, following the Court of Appeal's decision in Protus Oduor Malala v Wanyangu Livingstone Onjala. The appropriate relief - an injunction pending the hearing and determination of the suit - was never sought, and counsel did not seek leave to amend. Emphasising that pleadings define issues and that a court cannot grant relief not sought without risking a miscarriage of justice, the court dismissed the motion as misconceived and unmerited, with no orders as to costs. The substantive dispute over the alleged encroachment and development remains unresolved by this ruling.

Key legal issues

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01

Whether an injunction can issue under a prayer framed only pendente lite to the application

Holding

The motion was dismissed because the substantive prayer sought injunction only pending determination of the application, and once that application was decided the order would be spent; the appropriate relief, injunction pending determination of the suit, was not sought and no amendment was sought.

Reasoning

The court applied Giella v Cassman Brown as the test for interlocutory injunctions but held the threshold question was whether the relief as pleaded could be granted at all. Pleadings define issues and prevent shifting grounds; granting relief not sought would be a miscarriage of justice. Relying on Protus Oduor Malala, orders that would be spent or in vain cannot issue. Counsel did not seek leave to amend the defect at the hearing.

p. 2

Legal principles established

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  • A court cannot grant a relief not sought in the pleadings.

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 6th August 2021 is dismissed with no orders as to costs

Authorities

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Cases cited (2)

  • Giella vs Cassman Brown Co. Ltd
    (1973) EA 358
  • PROTUS ODUOR MALALA V WANYANGU LIVINGSTONE ONJALA
    [2021] eKLR
Jurisdiction invoked
Not stated in the judgment (Environment and Land Court original jurisdiction over land parcel Nairobi/Block/104/519)

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, "Issa Ahmed & 15 others v Mohamed Al-Sawae [2021] KEELC 1972 (KLR)", Case Analysis (2021). Notice of Motion dated 6th August 2021 (E&L Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1972/eng@2021-09-21

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