Elizabeth Joseph Hakimu v Mohamed Hamed Abdalla [2022] KEELC 343 (KLR)

The court examined the title documents filed by both parties and found several inconsistencies: the Defendant's order setting aside the 1994 decree purportedly issued by a Deputy Registrar of the ELC (a court created by the 2010 Constitution) at a date inconsistent with the alleged ruling; the Defendant's Certificate of Lease showed CR. 7995/1 while his postal search showed CR. 25459. The court, without pre-empting the full trial, found these discrepancies sufficient to establish an apparent infringement of the Plaintiff's rights calling for an explanation or rebuttal by the defence.

Applying Nguruman Limited v Jan Bonde Nielsen, the court held the applicant must demonstrate actual, substantial and demonstrable injury that cannot be adequately compensated. The court was persuaded because the documents relating to the suit land were clashing and required analysis by the court, and because the Defendant's construction interfered with the suit land's integrity and value, the Plaintiff not wishing any permanent development on the land. Monetary damages could not substitute for the potential loss.

The court held that in the interest of justice, the suit land must be secured and preserved until heard and determined on merit. Where both parties have legal documentation proving they each have title, the court invoked Section 68 of the Land Registration Act, 2012, following Dorcas Muthoni & 2 others v Michael Ireri Ngari on the nature of inhibition orders, and directed the Land Registrar, Mombasa to register an inhibition against any dealings.

Relying on Locabail International Finance Limited v Agroexport, the court held that mandatory injunctions on interlocutory application require special circumstances, a clear case, or a simple act easily remedied. Here the orders sought would grant a major part of the relief claimed in the main suit, and with both parties holding title documents, it was prudent and in the interest of justice to decline until evidence is tested at trial. Directing demolition before a merits hearing would be draconian.