Rajesh Mulji Bhundia v Kamal Hemraj Bhundia (sued as the Administrator of the estate of Hemraj Mulji Bhundia) & 4 others [2022] KEELC 2120 (KLR)
The bottom line
#The Mombasa Land Court kept a family property dispute alive but refused an urgent injunction, ruling the plaintiff was already protected by a caveat and had not acted cleanly.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the dispute
The ELC has jurisdiction because the major issue is ownership and title to land under Article 162(2)(b) and Section 13(2) of the ELC Act; the preliminary objection was overruled
The court held that the existence of related criminal proceedings does not oust the ELC's jurisdiction where the core dispute concerns ownership, use and occupation of land. Article 162(2)(b) and Section 13(2) of the ELC Act confer jurisdiction over title, land use and occupation disputes. The plea that criminal issues were pending before the Shanzu court did not dispose of the land question.
Whether the applicant was entitled to an interlocutory injunction
No; the applicant failed to establish a prima facie case with a probability of success and did not come to court with clean hands, having rented out his maisonette and having a tenant who was an accomplice in the criminal matter
Applying Giella v Cassman Brown, the applicant had to show a prima facie case, irreparable harm and balance of convenience. The court found the caveats were still in place, the registry file was intact, and the applicant remained in possession of his share, so no irreparable injury threatening his interest was demonstrated. His conduct disentitled him to equitable relief.
Nature of a preliminary objection
A preliminary objection must be a pure point of law, not blurred with factual details requiring proof
Citing Mukisa Biscuit and Oraro v Mbajja, the court reiterated that a preliminary objection cannot rest on facts to be ascertained or proved, nor seek judicial discretion. The jurisdictional objection, being a point of law on the court's mandate, was properly before the court and was determined on the pleadings.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
- Interlocutory injunctions are governed by the Giella principles of prima facie case, irreparable harm and balance of convenience, tempered by the equity maxim that he who comes to court must come with clean hands
Court orders
#- 1.Preliminary objection overruled; court found it has jurisdiction over the dispute
- 2.Application for injunction dismissed; applicant failed to establish a prima facie case
- 3.Status quo to be maintained pending the hearing and determination of the matter
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Article 162(2) and (3) of the Constitution of Kenya and Section 13(2) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rajesh Mulji Bhundia v Kamal Hemraj Bhundia (sued as the Administrator of the estate of Hemraj Mulji Bhundia) & 4 others [2022] KEELC 2120 (KLR)", Case Analysis (2022). Not stated in excerpt (ELC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2120/eng@2022-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.