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ELCOtherCivil Suit No 31 of 2021· [2022] KEELC 97 (KLR)

Rassam & 4 others v Kazungu & 6 others (Civil Suit 31 of 2021) [2022] KEELC 97 (KLR)

Environment and Land Court
9 June 2022
MSMunyao Sila
1,511 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (Munyao Sila, J) delivered on 9 June 2022 on the plaintiffs' application for an interlocutory injunction in a suit commenced by plaint on 15 February 2021. The plaintiffs claimed that the 1st plaintiff was allocated the disputed plot in 1991, later subdivided it and transferred portions to the other plaintiffs, who hold freehold titles and have developed the land. They discovered that the 1st to 3rd defendants hold a grant over the same parcel issued on 27 April 2012 (99-year lease from 1 May 2012), that another title was issued to the 4th defendant on 12 January 2015 and transferred to the 5th defendant after a sale of Kshs. 80,000,000, and they sought cancellation of the defendants' titles. The 1st to 3rd defendants opposed, asserting their own 2011 allocation and occupation and raising sub judice, citing two other Mombasa High Court matters. The 4th and 5th defendants asserted the 1991 allotment to the 4th defendant and a bona fide purchase by the 5th. Applying the injunction principles of prima facie case, irreparable loss and balance of convenience, the court found the plaintiffs had shown a possible legitimate interest through titles to subdivisions of the mother plot, but as all parties held competing titles over the same land, the dispute was too complex to resolve without full trial. The court applied the balance of convenience, ordered maintenance of the status quo in possession, barred developments and structures, restrained all parties from selling, charging, leasing or otherwise dealing with the land, and restrained the Land Registrar from registering any dealings, with costs in the cause. The sub judice plea was expressly deferred for further directions.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for an interlocutory injunction

Holding

By displaying titles to subdivisions of the mother plot, the plaintiffs demonstrated that they may have a legitimate interest in the disputed land, sufficient for a prima facie case, though the defendants also displayed competing titles.

Reasoning

The court held that although the applicants had not produced a title in their own names over the mother plot, titles to what they claim are its subdivisions prima facie showed a legitimate interest. All parties held competing titles to the same land. Because the ownership dispute was complex, the court would not weigh the rival cases at the interlocutory stage but opted for the balance of convenience, preserving possession and restraining dealings pending full trial.

p. 3
02

Whether to decide the application on the balance of convenience

Holding

Yes. The balance of convenience tilts towards maintaining the status quo in possession and titles; possession is to be maintained, no developments or structures, and all parties restrained from dealings over the land, with the Land Registrar restrained from registering any dealings.

Reasoning

Given that all parties hold titles over the same parcel and the dispute could only be resolved after a full hearing on merits, the court found the balance of convenience favoured maintaining the current possession and status of the land. It accordingly ordered that no developments be made, no walls or structures be built, and no sales, charges, leases or other dealings be registered until the suit is concluded.

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Legal principles established

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  • To sustain an application for injunction, an applicant must demonstrate a prima facie case with a probability of success, show irreparable loss, and where the court is in doubt, the application is decided on a balance of convenience.
  • Where competing titles over the same parcel are displayed and ownership is complex, the balance of convenience favours preservation of the status quo pending full trial.

Court orders

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  1. 1.The current possession of the land is to be maintained until the dispute is resolved; whoever is in possession should not make any developments on the land
  2. 2.No building of walls or any other structures on the land, and no invasion of it by any party, so as to alter the status quo
  3. 3.All parties are restrained from selling, charging, leasing, or entering into any dealings over the disputed land, irrespective of whatever title they hold
  4. 4.The Land Registrar is restrained from registering any dealings arising out of all the titles disclosed
  5. 5.Costs of the application shall be costs in the cause
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (court used is the Environment and Land Court at Mombasa; no specific provision is quoted in the judgment).

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, "Rassam & 4 others v Kazungu & 6 others (Civil Suit 31 of 2021) [2022] KEELC 97 (KLR)", Case Analysis (2022). Civil Suit No 31 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/97/eng@2022-06-09

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