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ELCDismissedNot stated in the judgment· [2022] KEELC 1633 (KLR)

Sauda Said Rajab Juma (Suing on her own behalf and as the Attorney of Muhsin Said Rajab Juma and Omar Said Rajab) v Sadiki Feri, Nguma Katana Ngole, Abdalla Chembe, Kesi Saro Mae, Shukurani Kalume, Kasena Kalama, Kahindi Mae, Katana Mwatsuma, Jando Mwaponda, Patrick Chibarawa, Karsa Ngoma, Saidi Elija Bongo, Douglas Kalonzi, Anthony Tangai Kagia, Ngala Mwadende, Peter Tangai, David Nyunga, Tangai Braha, Benson Ngala Mwatunje, Jonathan Kahindi Ngala, Mwanyamba Ndire, David Munga Mwadende, County Commissioner, Kilifi & Registrar Of Lands, Kilifi; Aisha Bindi Rajab Juma, Khadija Binti Rajab Juma, Zainabu Binti Rajab Juma, Abu Abdalla Mohamed, Said Amin Athman, Mohamed Athman Omar, Ali Shariff Othman, Tarim Athman Omar, Hafswa Athman Omar, Hawa Shariff Athman, Shamsiya Shariff Athman, Twalib Swaleh Musa, Said Swaleh Musa & Shifeya Swaleh Musa(Interested Parties) (Environment & Land Case E17 of 2020) [2022] KEELC 1633 (KLR)

Environment and Land Court
27 January 2022
1,841 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost her bid to evict long-term occupants because she couldn't prove her case clearly enough to win a court injunction.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 13th November 2020 in which the Plaintiff, Sauda Said Rajab Juma, sued on her own behalf and as attorney of two others, sought an interlocutory injunction restraining 24 Defendants from erecting structures on or interfering with Plot No. 140/IV/MN (CR9771), measuring approximately 480 acres, plus orders compelling the County Commissioner Kilifi and the Registrar of Lands Kilifi to enforce the injunction. Following a consent of 15th March 2021 enjoining 32 more Defendants and settling the suit as against some Defendants, the Motion proceeded against the 2nd, 4th, 7th, 8th, 9th, 11th, 13th, 15th, 19th, 20th and 21st Defendants. The Plaintiff claimed the Defendants' parents were employees of her grandfather, Rajab Bin Juma, allowed to build temporary houses, but who refused to vacate after the employment ended. The Defendants denied any employment relationship, asserting occupation by their forebears predating the Plaintiff's family's arrival, long residence, permanent and temporary structures, and graves on the land. The 22nd Defendant additionally claimed the land was held in trust for indigenous occupants after historical injustices. Applying the Nguruman and Mrao tests, the court found the Plaintiff had not established a prima facie case: she did not state when the employment relationship existed or ended, or how she became registered proprietor, while photographs showed the Defendants' considerable period of occupation. No urgent necessity or irreparable injury was shown. The Motion was dismissed with no order as to costs.

Key legal issues

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01

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

Holding

No prima facie case was established; the Plaintiff's own material left critical facts (dates of employment, termination, death of the grandfather, transmission of title) unexplained while the Defendants showed long occupation

Reasoning

The court acknowledged the Defendants were in possession of portions of the suit property. The Plaintiff asserted her grandfather had employed the Defendants' parents, but did not state when the employment began or ended, when the grandfather died, or how the Plaintiff became registered proprietor. The Defendants denied employment and asserted occupation by their great grandparents predating the Plaintiff's family, supported by photographs of permanent and temporary structures. Long occupation undermined any claimed infringement of a clear and unmistakable right warranting restraint.

p. 4
02

Whether irreparable injury and balance of convenience favoured the injunction

Holding

Neither was satisfied; the Plaintiff acknowledged the Defendants' long residence and the court found no urgent necessity to restrain their continued use of the land

Reasoning

Applying the Nguruman sequential test, the court found the Defendants had not only been on the land but had, over time, put up both permanent and temporary houses. This was acknowledged by the Plaintiff herself. Given that acknowledged occupation and settled presence, the court could not find any urgent necessity to prevent the Defendants from continuing to use the land, so the second and third limbs of the injunction test could not be met either.

p. 4

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, demonstrate irreparable injury, and show that the balance of convenience is in his favour
  • A prima facie case is more than an arguable case; the evidence must show infringement of a right and probability of success at trial
  • The party bearing the burden of proving a prima facie case must show a clear and unmistakable right directly threatened by the act sought to be restrained

Court orders

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  1. 1.The Notice of Motion dated 13th November, 2020 is dismissed
  2. 2.No order as to costs

Authorities

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Cases cited (2)

  • Nguruman Ltd -vs- Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012 (2014) eKLR
  • Mrao Limited -vs- First American Bank of Kenya Ltd & Another
    (2003) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory Notice of Motion within a land suit); specific enabling provision not stated 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, "Sauda Said Rajab Juma (Suing on her own behalf and as the Attorney of Muhsin Said Rajab Juma and Omar Said Rajab) v Sadiki Feri, Nguma Katana Ngole, Abdalla Chembe, Kesi Saro Mae, Shukurani Kalume, Kasena Kalama, Kahindi Mae, Katana Mwatsuma, Jando Mwaponda, Patrick Chibarawa, Karsa Ngoma, Saidi Elija Bongo, Douglas Kalonzi, Anthony Tangai Kagia, Ngala Mwadende, Peter Tangai, David Nyunga, Tangai Braha, Benson Ngala Mwatunje, Jonathan Kahindi Ngala, Mwanyamba Ndire, David Munga Mwadende, County Commissioner, Kilifi & Registrar Of Lands, Kilifi; Aisha Bindi Rajab Juma, Khadija Binti Rajab Juma, Zainabu Binti Rajab Juma, Abu Abdalla Mohamed, Said Amin Athman, Mohamed Athman Omar, Ali Shariff Othman, Tarim Athman Omar, Hafswa Athman Omar, Hawa Shariff Athman, Shamsiya Shariff Athman, Twalib Swaleh Musa, Said Swaleh Musa & Shifeya Swaleh Musa(Interested Parties) (Environment & Land Case E17 of 2020) [2022] KEELC 1633 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1633/eng@2022-01-27

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