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ELCDismissedNot stated in the judgment (Petition with Notice of Motion dated 28th October 2020)· [2021] KEELC 2664 (KLR)

Abdullahi Omar Said v County Government of Mombasa [2021] KEELC 2664 (KLR)

Environment and Land Court
5 July 2021
CYC.K. Yano
2,075 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa refused to stop a county demolition because the landowner showed no strong case and his losses could be paid in money.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 28th October 2020 filed by the petitioner alongside his petition, in which he sought temporary conservatory orders restraining the County Government of Mombasa from demolishing, entering upon or dealing with Plot No. MN/I/1502/R at Bamburi, Mombasa, and directing the police to enforce such orders. The petitioner claimed to be the legal and beneficial owner of the property, described as a disused access road, having occupied it since 2016 and constructed residential and commercial premises, and alleged that on 10th October 2020 the respondent demolished structures valued at Kshs.3,200,000, violating his constitutional property rights. The respondent, through a replying affidavit sworn by Felix Dindi, maintained that the suit property is a public access road, that the petitioner holds no title, and that the rights of the general public prevail. The Interested Party filed no response. C.K. Yano, J, applied the settled principles for conservatory orders drawn from CREAW, MUHURI and the Supreme Court's decision in Gitirau Peter Munya, holding that an applicant must demonstrate an arguable prima facie case with a likelihood of success and that the petition would be rendered nugatory absent the orders. The court found the petitioner had conceded the demolished structures stood on an access road and had therefore not established a prima facie case; further, since a valuer had quantified the damage at Kshs.3,200,000, irreparable harm did not arise. The application was dismissed with costs to the respondent on 5th July 2021, the substantive petition remaining for determination.

Key legal issues

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Whether the petitioner met the threshold for grant of conservatory orders pending determination of the petition

Holding

He did not; no prima facie case with likelihood of success was shown and no irreparable prejudice was demonstrated

Reasoning

The court set out the settled principles from CREAW, MUHURI and the Munya decision: an applicant must show an arguable prima facie case with likelihood of success, and that absent the orders the petition would be rendered nugatory, bearing in mind public interest. The petitioner conceded the demolished structures were on an access road, undermining ownership, and since a valuer had assessed the demolished structures at Kshs.3,200,000, any harm is quantifiable, so irreparable harm does not arise.

p. 3

Legal principles established

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  • An applicant for conservatory orders must demonstrate a prima facie case with a likelihood of success and that absent the orders he is likely to suffer prejudice and the petition rendered nugatory
  • Where damages can be ascertained, irreparable harm does not arise and the petition will not be rendered nugatory

Court orders

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  1. 1.The notice of motion dated 28th October 2020 is dismissed with costs to the respondent

Authorities

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Cases cited (8)

  • Anne Mumbi Waiguru –v- County Assembly of Kirinyaga
    (2020) eKLR
  • Okiya Omtata Okoiti –v- Cabinet Secretary for Information, Communication and Technology & 2 Others
    (2019) eKLR
  • Satrose Ayuma & 11 Others –v- Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others
    (2011) eKLR
  • Judicial Service Commission –v- Speaker of the National Assembly & Another
    (2013) eKLR
  • Gitirau Peter Munya –v- Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Ashok Kumar Pandey –v- State of West Bengal
  • Centre for Rights Education and Awareness (CREAW) & 7 Others –v- Attorney General
    (2011) eKLR
  • Muslims for Human Rights (MUHURI) & 2 Others –v- Attorney General & 2 Others
    (2011) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - alleged violation of constitutional rights to property (bill of rights petition)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdullahi Omar Said v County Government of Mombasa [2021] KEELC 2664 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition with Notice of Motion dated 28th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2664/eng@2021-07-05

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