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ELCPartially AllowedNot stated in the judgment as provided· [2021] KEELC 2057 (KLR)

Mombasa Cement Limited v Salim Masoud Abdalla & 4 others [2021] KEELC 2057 (KLR)

Environment and Land Court of Kenya
21 July 2021
CYC.K. Yano
4,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determined three interlocutory applications arising from a suit by Mombasa Cement Limited against trustees of the Mazrui Community (Development Welfare) Wakf Land Trust. The plaintiff claimed a lease of 1000 acres in Kilifi and sought temporary injunctions restraining the defendants from alienating the suit property or interfering with its possession, pending trial of its claim for exclusive possession and a permanent injunction. The 1st and 2nd defendants cross-applied, asserting the agreement to lease was unenforceable (signed by only four of six trustees), the 2014 lease a forgery, and that the plaintiff's mining operations breached the Physical Planning Act, Land Control Act, EMCA and Wakf Commission Act; they sought to discharge the ex-parte orders of 5th May 2017 and to restrain the mining. A third application by counsel sought a stay pending appointment of a legal representative after the 1st defendant's death on 13th July 2018. Applying Giella v Cassman Brown, the court found the plaintiff in possession since 2009 with rent paid (Kshs 100,000,000 confirmed by the 3rd and 4th defendants), established a prima facie case, and held the best course was maintenance of status quo pending trial. Relying on the Mugenda decision, it refused to grant final relief (registration of the lease; permanent injunctions) at the interlocutory stage. The plaintiff's application was allowed, the defendants' second and third applications dismissed, the suit against the deceased 1st defendant abated, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the plaintiff established a prima facie case warranting interim protection

Holding

Yes; the plaintiff has been in possession since 2009 and a prima facie case with probability of success was established, warranting maintenance of status quo

Reasoning

Applying Giella v Cassman Brown, the court found the plaintiff in possession of the suit property since 2009 while remitting rent, with the 3rd and 4th defendants confirming receipt of Kshs 100,000,000. The enforceability of the lease was immaterial at the interlocutory stage. The plaintiff would suffer irreparable loss if dispossessed, and the balance of convenience favoured maintaining the status quo, particularly as some defendants supported the plaintiff's position.

p. 5
02

Whether the 1st and 2nd defendants' conditional injunction application should succeed

Holding

Dismissed; the questions of forgery and validity of the lease cannot be determined at interlocutory stage

Reasoning

The defendants' application was premised on the invalidity of the agreement to lease and the alleged forgery of the lease. The court held these contested questions of fact and law require a full hearing and could not justify final relief (a permanent injunction) at this stage.

p. 5
03

Effect of the 1st defendant's death on the proceedings

Holding

The suit against the 1st defendant abated on 12th July 2019 as no legal representative was substituted within one year

Reasoning

Order 24 Rule 4 requires the legal representative of a deceased defendant to be made a party; if no application is made within one year, the suit abates against the deceased. The cause of action survived death as a land matter, but the 1st defendant died on 13th July 2018 and no substitution occurred, so the suit abated against him by 12th July 2019.

p. 5

Legal principles established

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  • An order granting a major relief claimed in a suit ought not to be granted at an interlocutory stage
  • On death of a sole defendant where the cause of action survives, the action is suspended until the legal representative is substituted, and absent substitution within one year the suit abates

Court orders

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  1. 1.The first application by the plaintiff dated 6th June 2017 is allowed
  2. 2.The second application by the 1st and 2nd defendant dated 24th May 2017 is dismissed
  3. 3.The third application dated 30th July 2018 is dismissed, and the suit against the 1st defendant stands abated
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 24 Rule 4
  • Wakf Commission ActNot specified
  • Land Control ActNot specified
  • Physical Planning Act (1996)Not specified
  • Environmental Management and Coordination Act (2009)Not specified
  • Water ActNot specified
  • Mining ActNot specified
  • Land Titles ActCertificate of ownership No. 409

Cases cited (2)

  • Giella –v- Cassman Brown & Co
    (1973) EA 358
  • Olive Mwihaki Mugenda & Another –v- Okiya Omtata Okoiti & 4 Others
    (2016) eKLR
Jurisdiction invoked
Not expressly stated; original civil jurisdiction over land matters, Civil Procedure Act and Rules

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, "Mombasa Cement Limited v Salim Masoud Abdalla & 4 others [2021] KEELC 2057 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2057/eng@2021-07-21

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