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ELCDismissedELC Case of 2021 (Notice of Motion dated 17th March 2021)· [2022] KEELC 702 (KLR)

Suleiman Mohamed Said Al-Busaidy & another (Both Suing as Trustees of the Estate of the Late Mohamed Said Suleiman (Deceased)) v Kenya Ports Authority [2022] KEELC 702 (KLR)

Environment and Land Court
24 March 2022
NMN. A. Matheka
1,057 words in judgment
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The bottom line

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A Mombasa court refused to evict The Standard Group early in the case, ruling that final possession orders can only come after a full hearing of all parties.

What this practically means

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Executive summary

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The Plaintiffs, trustees of the trust of the late Mohamed Said Suleiman by virtue of a vesting order issued on 16th September 2019 in High Court Probate and Administration Cause No. 31 of 1988, brought a notice of motion dated 17th March 2021 under Articles 40 and 59(2)(b) of the Constitution, Section 66(c) of the Land Act, and Order 36 Rule 1(b) of the Civil Procedure Rules. They sought a mandatory injunction compelling the Defendant to surrender vacant possession of Plot No. Mombasa/Block/XXVI/17 in Kizingo, Mombasa, plus police security during eviction. The Plaintiffs' case was that the Defendant's predecessor, East African Standard Limited, took a 99-year lease from the late Sheikha Binti Ali in 1920; the lease expired on 30th September 2019 by effluxion of time; the covenant required the tenant to remove buildings and restore the surface; and despite notices and demands, the Defendant refused to vacate, offered compensation for its buildings, and threatened an adverse possession claim. The Defendant opposed, arguing the mandatory injunction was a substantive prayer that would dispose of the entire suit unheard, circumvented Section 152E of the Land Act, was marred by material non-disclosure, and would dislodge third-party families occupying dwelling houses who were not enjoined. Justice N.A. Matheka held that the mandatory injunction is a substantive and final order that cannot be granted at the interim stage; the court must hear all parties before final orders. The application was dismissed with costs and parties directed to comply with Order 11 and list the matter for hearing.

Key legal issues

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01

Whether a mandatory injunction can issue on an interlocutory application to compel surrender of vacant possession after expiry of a 99-year lease

Holding

No - the mandatory injunction sought would dispose of the substantive suit and cannot be granted at the interim stage

Reasoning

The court noted that the plaint filed on 18th February 2021 already seeks eviction/ejectment from the suit premises, so granting the mandatory injunction on the motion would have the effect of finally determining the suit. The court must listen to all the parties, including the defendant's objections (circumvention of Section 152E of the Land Act, material non-disclosure, and affected third-party occupants) before giving final orders.

p. 3

Legal principles established

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  • A mandatory injunction is a substantive and final order which cannot be granted at an interim stage before the court has heard all the parties

Court orders

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  1. 1.The application dated 17th March 2021 is dismissed with costs
  2. 2.Parties are advised to comply with Order 11 and list the matter for hearing

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 59(2)(b)
  • Land Act No. 6 of 2012Section 66(c)
  • Land Act No. 6 of 2012Section 152E
  • Civil Procedure RulesOrder 36 Rule 1(b)
  • Civil Procedure ActSections 1A, 1B and 3A
Jurisdiction invoked
Articles 40 and 59(2)(b) of the Constitution of Kenya 2010, Section 66(c) of the Land Act No. 6 of 2012 and Order 36 Rule 1(b) of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure 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, "Suleiman Mohamed Said Al-Busaidy & another (Both Suing as Trustees of the Estate of the Late Mohamed Said Suleiman (Deceased)) v Kenya Ports Authority [2022] KEELC 702 (KLR)", Case Analysis (2022). ELC Case of 2021 (Notice of Motion dated 17th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/702/eng@2022-03-24

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