Abdikadir Issack Ali & 2 others v Ahmed Hassan Omane & 2 others [2021] KEELC 3199 (KLR)
The bottom line
#The Garissa Environment and Land Court refused to lift an injunction protecting disputed plots, keeping the land frozen until the ownership case is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
They did. Parties claiming different parcels located at the same place raises a prima facie case requiring an explanation from the Defendants
The court noted that although Plaintiffs and Defendants claim distinctly different parcels supported by ownership documents, the portions are 'mysteriously located in the same place'. Applying Mrao Ltd v First American Bank, this apparent inconsistency establishes a right apparently infringed, calling for an explanation or rebuttal from the Defendants, thereby satisfying the first limb of the Giella test.
Whether the Plaintiffs would suffer irreparable injury absent an injunction
Yes - the property would likely be alienated and transferred to third-party purchasers for value, rendering damages inadequate
The Defendants were in the process of beaconing, subdividing and selling the land. If the suit proceeded to full hearing, the property could be alienated, forcing the Plaintiffs to evict purchasers for value to recover the land. Damages would then be an inadequate remedy, satisfying the second limb of the Giella test.
Where the balance of convenience lies
With the Plaintiffs; the inconvenience of losing the land outweighs the Defendants' inability to alienate it pending trial
Weighing the parties' respective inconveniences, the court found the Plaintiffs' potential loss of the property weightier than the Defendants' restriction on alienation pending hearing. The court aligned itself with Amir Suleiman v Amboseli Resort, that the lower rather than the higher risk of injustice should guide the court in injunctive relief.
Legal principles established
#- The Giella v Cassman Brown three-part test for interim injunctions is all-inclusive; a party seeking an injunction must cross all three hurdles and may not leap-frog directly to the remedy
Court orders
#- 1.The temporary injunction issued on 8th October 2020 remains in force pending inter partes hearing and disposal of the suit
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; application under Order 40 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdikadir Issack Ali & 2 others v Ahmed Hassan Omane & 2 others [2021] KEELC 3199 (KLR)", Case Analysis (2021). ELC Case No. 10 of 2020 (Garissa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3199/eng@2021-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.