Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case at Malindi (suit filed 8th April 2015); applications dated 7th May 2020 and 21st July 2020· [2021] KEELC 2331 (KLR)

Piry Johnstone Muye v Sharif Omar Mohamed; Jaffer Shariff Omar (Applicant) [2021] KEELC 2331 (KLR)

Environment and Land Court
30 July 2021
2,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The court determined two applications in a long-running land dispute. The first, by Jaffer Shariff Omar, sought to set aside injunction orders issued by Angote J on 21st April 2016 and to be enjoined as an Interested Party. The Plaintiff, Piri Johnstone Muye, opposed, contending that the Applicant was the same person as the Defendant, Shariff Omar Mohamed. The court found no evidence supporting that claim; the Applicant's own affidavit had stated the two are brothers with no legal relationship between them. Applying the Supreme Court's definition of an interested party as one with an identifiable stake in proceedings, and noting that the Plaintiff did not deny that the property claimed is registered in the Applicant's name, the court joined the Applicant as the 2nd Defendant. However, the court declined to discharge the injunction orders: they had been in place about five years, the Applicant showed no prejudice, the Plaintiff had diligently prosecuted his case with only the defence hearing pending, and discharging the orders could enable the eviction of the Plaintiff, who resides on the suit property. The second application, by the Plaintiff, sought the transfer of Kilifi ELC No. 29 of 2020 from the Chief Magistrates Court and its consolidation with this suit. The court set out the criteria for consolidation - common questions of law or fact, claims arising from the same transaction, or desirability - but found that the parcel in dispute in the Kilifi suit (LR No. 11365/III/MN) was not shown to be the same as the land in this suit, and refused consolidation. The Plaintiff's application was dismissed; the Applicant's Motion succeeded only in terms of the joinder prayer. Costs of both applications were made costs in the suit.

Key legal issues

#
01

Whether the Applicant qualifies to be enjoined as an interested party

Holding

He does; he is the registered owner of the suit property and stands to be directly affected by the orders, and the Plaintiff did not rebut his assertion that he is a brother to, and not the same person as, the Defendant

Reasoning

The court found no evidence from the Plaintiff establishing that Jaffer Shariff Omar and the Defendant Shariff Omar Mohamed are the same person; the Applicant's own earlier affidavit stated they are brothers. The Plaintiff did not deny that the property claimed is registered in the Applicant's name. Applying the Trusted Society test of an identifiable stake, the court held the Applicant demonstrated a direct stake and joined him as the 2nd Defendant.

p. 2
02

Whether the interim injunction of 21st April 2016 should be discharged

Holding

No; the orders were left in place to preserve the status quo

Reasoning

Although injunctions should be determined expeditiously and the orders had been in place about five years, the Applicant did not show prejudice from them, nor that the Plaintiff had gone to sleep on the suit - only the defence case remained. Discharging the orders could enable eviction of the Plaintiff, who resides on the property, and so the court declined to discharge them.

p. 3
03

Whether the Kilifi magistrate's court suit should be transferred and consolidated with this suit

Holding

No; consolidation was refused

Reasoning

Consolidation requires common questions of law or fact or claims arising from the same transaction. The present suit concerns Plot No. 7733/III/22036 (subdivided into LR MN/III/2238, MN/III/3237 and 11217 Mainland North), while the Kilifi case concerns LR No. 11365/III/MN. Nothing showed the parcels were the same, so there was no basis for transfer and consolidation.

p. 3

Legal principles established

#
  • An interested party is a person with an identifiable stake in proceedings who was not a party ab initio and will be affected by the decision either way
  • The court has unfettered discretion to discharge, vary or set aside an injunction order where the ends of justice so demand
  • Interim injunctions preserve the state of things pending investigation of the dispute and are not meant to be punitive
  • Jurisdiction to consolidate suits arises where there are common questions of law or fact, or the claims arise out of the same transaction, or where it is otherwise desirable

Court orders

#
  1. 1.The Applicant, Jaffer Shariff Omar, is enjoined in the suit as the 2nd Defendant in terms of Prayer No. 4 of his Motion dated 17th May 2020
  2. 2.The prayer to discharge, set aside or vary the injunction orders issued on 21st April 2016 is declined and those orders remain in force
  3. 3.The Plaintiff's application dated 21st July 2020 for transfer and consolidation of Kilifi ELC No. 29 of 2020 with this suit is dismissed
  4. 4.Costs of the two applications shall be in the suit

Authorities

#

Cases cited (2)

  • Trusted Society of Human Rights Alliance –vs- Mumo Matemu & 5 Others
    (2014) eKRL
  • St Patricks Hill School Ltd –vs- Bank of Africa Kenya Ltd
    (2018) eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to join parties and consolidate suits (civil procedure); no specific provision quoted in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Piry Johnstone Muye v Sharif Omar Mohamed; Jaffer Shariff Omar (Applicant) [2021] KEELC 2331 (KLR)", Case Analysis (2021). ELC Case at Malindi (suit filed 8th April 2015); applications dated 7th May 2020 and 21st July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2331/eng@2021-07-30

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