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ELCDismissedNot stated in judgment (interlocutory Notice of Motion dated 29th October, 2019 filed with plaint)· [2021] KEELC 3214 (KLR)

Mahfudh Abdulrahman Mohamed v Ahmed Said Abdul-Rahman & another [2021] KEELC 3214 (KLR)

Environment and Land Court
19 May 2021
CYC.K. Yano
1,000 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to protect a family property claim where a prior succession ruling had already rejected the claimant's entitlement.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (C.K. Yano, J) determined a Notice of Motion dated 29th October 2019 in which the plaintiff, Mahfudh Abdulrahman Mohamed, sought a temporary injunction restraining the defendants, his nephews, from levying execution against his assets or interfering with his possession and occupation of the 1st floor apartment on Parcel Reference No. Mombasa/Block XVI/1343. The plaintiff claimed to be the lawful heir and proprietor of a 16.67% share of the estate of his late father, Abdulrahman Ahmed Mohamed, and thus entitled to the apartment. He averred that despite earlier consent agreements withdrawing his claims in previous suits between the parties, the defendants repeatedly interfered with his property and demanded vacant possession and rent arrears. The defendants denied the claim, contending that the 16.67% share must be shared among all eleven heirs and that the plaintiff lacked locus standi. Applying the settled principles for interlocutory injunctions - prima facie case with probability of success, irreparable injury not compensable in damages, and, if in doubt, balance of convenience - the court found no prima facie case, noting that a ruling of 31st May 2018 in Mombasa Succession Cause No.326 of 2012 annexed by the plaintiff showed his prior claim over the premises by way of objection had failed. The court further held any damage was quantifiable in damages. The application was dismissed with each party bearing their own costs in view of the parties' family relationship.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

He did not; a prior ruling in Mombasa Succession Cause No.326 of 2012 shows his claim over the suit premises (by way of objection) had failed

Reasoning

The court noted the dispute over entitlement to the suit premises could only be resolved at full hearing, but on the affidavit evidence, particularly the 31st May 2018 succession ruling annexed by the plaintiff, the plaintiff's claim over the premises had already failed, so no prima facie case with probability of success was shown.

p. 2
02

Whether the plaintiff would suffer irreparable damage not compensable in damages

Holding

He would not; any damage could be quantified in damages

Reasoning

The court applied the second Giella principle, holding that any harm the plaintiff might suffer from the defendants' alleged interference or claims for possession and rent arrears was capable of being adequately compensated by an award of damages, and did not reach the balance of convenience stage.

p. 2

Legal principles established

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  • An interlocutory injunction requires establishment of a prima facie case with a probability of success; alternatively irreparable injury not adequately compensable by damages; and if in doubt, the balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 29th October, 2019 is dismissed for lack of merit
  2. 2.Each party to bear their own costs, considering the relationship of the parties
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit premises (Parcel Reference No. Mombasa/Block XVI/1343); no specific provision cited in the ruling.

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, "Mahfudh Abdulrahman Mohamed v Ahmed Said Abdul-Rahman & another [2021] KEELC 3214 (KLR)", Case Analysis (2021). Not stated in judgment (interlocutory Notice of Motion dated 29th October, 2019 filed with plaint). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3214/eng@2021-05-19

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