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ELCPartially AllowedNairobi ELC (Commercial Division) Suit No. 60 of 2019· [2021] KEELC 2905 (KLR)

Diana Njeri Katambani & another v Yusuf Bashir & another [2021] KEELC 2905 (KLR)

Environment and Land Court
10 June 2021
3,475 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A co-owner in Kenya can't evict a tenant without proof of illegality, but is entitled to half the rent from jointly owned property while the case continues.

What this practically means

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Executive summary

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The plaintiffs, co-owner and her attorney of a property owned by the 1st plaintiff and the late Myra Malia Katambani as tenants in common, sought a permanent injunction, eviction, police superintendence of eviction, and in the alternative monthly market rent of Kshs. 150,000/- against the 2nd defendant, who claims to have cohabited with the deceased and had a child with her, and the 1st defendant, a tenant who took a lease of the main house from the 2nd defendant. The court applied the Giella v Cassman Brown principles and the higher threshold for mandatory injunctions from Locabail and Shepherd Homes. It held that the 1st plaintiff, holding no grant of letters of administration, could not claim the deceased's share of the property. The court also held that it lacked jurisdiction to determine whether the 2nd defendant was married to the deceased or a beneficiary of her estate, that question belonging to the High Court in succession proceedings, and that such issues cannot be resolved summarily on affidavit evidence. On the evidence, including a 2015 email showing the deceased controlled the property and collected rent, the court found no prima facie case of illegal occupation and refused the injunction, eviction and police orders. However, it found the 1st plaintiff entitled to her share of rent from the co-owned property and, declining the unproved Kshs. 150,000/- market rate, ordered the defendants to pay her half of the actual rent collected until trial, with a statement of rent to be filed within 14 days, and costs in the cause.

Key legal issues

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01

Giella test for interlocutory injunction

Holding

The Giella v Cassman Brown principles govern, and a higher threshold applies to mandatory injunctions

Reasoning

The court restated the settled principles in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience. For mandatory injunctions, the court applied Locabail International Finance and Shepherd Homes, requiring special circumstances, a clear case, and a high degree of assurance.

p. 2
02

Title to sue in respect of the deceased's share

Holding

The 1st plaintiff, having no grant of letters of administration, cannot claim the deceased's share

Reasoning

Although the plaintiffs initially claimed sole ownership, they admitted tenancy in common. None held a grant; therefore only the 1st plaintiff's own share could be the subject of the claim, and the deceased's share vests in her estate pending succession proceedings.

p. 3
03

Illegal occupation by 1st defendant

Holding

The 1st defendant's occupation is not illegal since the deceased had authority to lease the property

Reasoning

The email of 8th August 2015 showed the deceased had full control of the property and collected rent with the 1st plaintiff's acquiescence. The 1st defendant's occupation therefore flowed from a valid letting by a co-owner in control, not a trespass.

p. 3
04

Jurisdiction over marital/beneficiary status of 2nd defendant

Holding

The ELC has no jurisdiction to determine whether the 2nd defendant was married to the deceased or benefits from her estate

Reasoning

The court held that determining marriage and beneficial entitlement in the deceased's estate is for the High Court in succession proceedings. On the material before it, the 2nd defendant's claim of cohabitation and dependancy could not be dismissed summarily, and such issues cannot be determined on affidavit evidence.

p. 3
05

Interim payment of rent to a co-owner

Holding

The 1st plaintiff is entitled to half the rent collected from the jointly owned property pending trial

Reasoning

Although the plaintiffs established no illegality, they demonstrated co-ownership and non-receipt of the 1st plaintiff's rent share, with minimal chances of recovery if not secured. The court granted the alternative relief but refused the claimed Kshs. 150,000/- market rate as unproved, instead ordering payment of half the actual rent.

p. 4

Legal principles established

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  • An applicant for a temporary mandatory injunction must show a very strong case likely to succeed, a higher threshold than for a prohibitory injunction
  • A co-owner in control of property, as against a third party, has a right to lease it out and collect rent
  • A co-owner who is not a legal representative of a deceased co-owner's estate cannot claim the deceased's share
  • A co-owner is entitled to a half share of rent collected from jointly owned property

Court orders

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  1. 1.Prayer (i) declared spent
  2. 2.Prayers (ii), (iii) and (iv) refused
  3. 3.Prayer (v) allowed on terms: defendants to file within 14 days a true statement of rent paid by the 1st defendant to the 2nd defendant from 1st January, 2021 to 31st May, 2021
  4. 4.Defendants to pay to the 1st plaintiff half of the monthly rent being paid by the 1st defendant with effect from 10th June, 2021 and on the 10th day of each succeeding month until determination of the suit
  5. 5.If the 1st defendant's tenancy terminates, the 2nd defendant shall ensure half of the rent paid by any new tenant is given to the 1st plaintiff
  6. 6.Costs of the application in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A and 3A
  • Civil Procedure RulesOrder 36 Rule 1(1)(b)
  • Constitution of Kenya, 2010Article 40

Cases cited (4)

  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Locabail International Finance Limited v Agro-Export
    (1988) 1 All ER 901
  • Shepherd Homes Ltd. v Shandahu
    [1971] 1 Ch. 304
  • Taylor v Bolus
    [1981] KLR 536
Jurisdiction invoked
Articles 40 and 162(2)(b) of the Constitution; Environment and Land Court Act

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, "Diana Njeri Katambani & another v Yusuf Bashir & another [2021] KEELC 2905 (KLR)", Case Analysis (2021). Nairobi ELC (Commercial Division) Suit No. 60 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2905/eng@2021-06-10

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