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ELCDismissedNot stated in the excerpt· [2022] KEELC 1324 (KLR)

Sajun Limited v Roy Rod Kinyale & 6 others [2022] KEELC 1324 (KLR)

Environment and Land Court
23 February 2022
NMN.A. MATHEKA
1,235 words in judgment
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The bottom line

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A Mombasa court refused to protect a landowner from subdivision because the county approval letter backing the claim turned out to be a forgery.

What this practically means

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Executive summary

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By a notice of motion dated 21st September 2021 brought under Sections 1A and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, 2010, the Plaintiff sought interim and pending-suit injunctions restraining the Defendants from subdividing, selling, transferring, leasing, charging, accessing, occupying or otherwise interfering with L.R. No. MN/111/3348, together with costs. The Plaintiff asserted it is the registered leaseholder for 99 years from 1st December 1996; that the 1st and 2nd Defendants' rival title had been cancelled in Mombasa HCCC No. 289 of 2009; and that despite that cancellation, and with approvals purportedly granted by the 3rd, 4th and 6th Defendants, the suit property had been subdivided into L.R. Nos. MN/lll/12214, MN/lll/12215 and MN/lll/12216. The 6th Defendant opposed, deponing that the letter dated 15th January 2020 purporting to approve the subdivision was a forgery, bearing a fake stamp, fake reference number and a signature not his, and purported to be issued under the repealed Physical Planning Act rather than the Physical and Land Use Planning Act of 2019; the DCI Coast Region was investigating suspected forged stamps. Applying the Giella vs Cassman Brown principles, the court found the approval letter to be a forgery and held the Plaintiff had not established a prima facie case with a high probability of success. The application was dismissed with costs in the cause.

Key legal issues

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01

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

Holding

The application was dismissed because the Plaintiff failed to establish a prima facie case with a high probability of success; the letter of 15th January 2020 relied on as the basis of the subdivision approval was found by the 6th Defendant to be a forgery and counterfeit, and the DCI were investigating suspected forged stamps

Reasoning

The court accepted as a finding of fact that the Plaintiff is the registered leaseholder of the suit property and that the 1st and 2nd Defendants' rival title was cancelled in HCCC No. 289 of 2009. However, the subdivision of the property into three portions occurred under an approval letter dated 15th January 2020 which the 6th Defendant deponed was fake, bearing a forged stamp, a fake reference number and a signature that was not his, and issued under a repealed statute. On that evidence the court concluded the Plaintiff had not demonstrated a prima facie case with high probability of success and declined the injunction.

p. 2

Legal principles established

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  • The Giella vs Cassman Brown principles govern the grant of interlocutory injunctions: prima facie case with high probability of success, irreparable injury not adequately compensable by damages, and balance of convenience where the court is in doubt

Court orders

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  1. 1.The application dated 21st September 2021 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Physical Planning ActNot specified (noted as repealed in 2020)
  • Physical and Land Use Planning Act2019

Cases cited (2)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Sajun Limited vs The Attorney General & 2 Others
    Mombasa HCCC No. 289 of 2009
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, 2010

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, "Sajun Limited v Roy Rod Kinyale & 6 others [2022] KEELC 1324 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1324/eng@2022-02-23

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