Piry Johnstone Muye v Sharif Omar Mohamed; Jaffer Shariff Omar (Applicant) [2021] KEELC 2331 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant qualifies to be enjoined as an interested party
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
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.
Whether the interim injunction of 21st April 2016 should be discharged
No; the orders were left in place to preserve the status quo
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.
Whether the Kilifi magistrate's court suit should be transferred and consolidated with this suit
No; consolidation was refused
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.
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.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.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.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.Costs of the two applications shall be in the suit
- 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.