Asaa Tabu Asaa & 113 others v Mohamed Said Rajab & 10 others [2021] KEELC 2483 (KLR)
The bottom line
#A Kenyan court protected squatters' homes from demolition but allowed their criminal prosecutions to continue alongside the civil land case.
What this practically means
#Executive summary
#Key legal issues
#Whether to stay criminal prosecutions for forcible detainer pending the civil suit
The stay was refused. Forcible detainer is a criminal offence under Section 91 of the Penal Code, prosecutions were instituted by the State through the ODPP who was not a party, and Section 193A of the Criminal Procedure Code bars staying criminal proceedings merely because the same matter is in issue in civil proceedings.
The court noted all criminal prosecutions are instituted by the State at a complainant's behest. The Plaintiffs neither enjoined the DPP nor demonstrated that the prosecution exceeded the DPP's mandate, contravened the law, or was actuated by ulterior motive. Section 193A of the Criminal Procedure Act expressly removes concurrency of civil and criminal proceedings as a ground for staying the criminal process.
Whether a temporary injunction should issue to protect the Plaintiffs' possession pending trial
A temporary injunction was granted in modified terms: the Defendants were restrained from demolishing existing structures, sub-dividing, selling or transferring the suitland, but not from entering it.
Applying Giella v Cassman Brown, the court found that although the Defendants disputed continuous 12-year occupation, it was undisputed that some Plaintiffs presently occupy portions of the original Plot No. 102, as evidenced by the Defendants' own counterclaim for vacant possession of 234.5 acres. The balance of convenience favoured the Plaintiffs since the Defendants had not refuted intentions to demolish structures and evict.
Whether substituted service should be granted on unnamed co-owners
Leave was granted for substituted service by newspaper on the seven unnamed Defendants.
The documents from the Land Registry showed the suitland was owned by the listed Defendants together with seven others whose names were not given. The court accepted that these unnamed co-owners needed to be served and that newspaper publication was appropriate.
Legal principles established
#- The conditions for granting a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
- A prima facie case in a civil application is a genuine and arguable case showing an apparent infringement of a right calling for explanation or rebuttal
- Concurrent criminal and civil proceedings on the same facts are not a ground for stay or prohibition of the criminal proceedings
- A court cannot make orders against a person who is not a party to the proceedings
Court orders
#- 1.Temporary injunction restraining the Defendants from demolishing the Plaintiffs' already existing structures on the suitland, sub-dividing, selling and/or transferring the suitland pending the hearing and determination of the suit
- 2.Leave granted to the Plaintiffs to serve the seven unnamed Defendants by way of substituted service
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Environment and Land Court original jurisdiction over land disputes (adverse possession claim and interlocutory application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asaa Tabu Asaa & 113 others v Mohamed Said Rajab & 10 others [2021] KEELC 2483 (KLR)", Case Analysis (2021). ELC Case (Originating Summons) – Malindi, application dated 23rd July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2483/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.