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ELCPartially AllowedNot stated in excerpt (ELC, Mombasa)· [2022] KEELC 2120 (KLR)

Rajesh Mulji Bhundia v Kamal Hemraj Bhundia (sued as the Administrator of the estate of Hemraj Mulji Bhundia) & 4 others [2022] KEELC 2120 (KLR)

Environment and Land Court
18 January 2022
3,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, Rajshi Mulji Bhundia, applied by Notice of Motion dated 20th July 2020 for interlocutory injunctions restraining the defendants from selling, charging or interfering with Plot No. MN/1/2434 in Mombasa, and for orders compelling deposit of the title deed and land registry records with the court. He claimed a one-third share as co-owner with his late brothers; the estate of one brother was administered by the 1st defendant, who allegedly removed the title from a bank locker, and a purported sale to the 3rd defendant, removal of a caveat, disappearance of registry records, and the criminal prosecution of the applicant's son were said to form a scheme to dispossess him. The 2nd and 3rd defendants raised a preliminary objection on cause of action, abuse of process, lack of jurisdiction over criminal matters, and the Law of Succession Act and Land Registration Act. The 4th defendant (Land Registrar) confirmed the plaintiff's registered one-third share, that the caveat remains in place and that the deed file is intact and never lost. The court applied the Mukisa Biscuit and Oraro tests, overruled the preliminary objection, holding that ownership of land falls squarely within the ELC's jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act. Applying Giella v Cassman Brown, the court found the applicant had not established a prima facie case: the caveats remain, the file is intact, and he remains in possession of his share; his conduct (renting out his maisonette to an accomplice in the criminal case) meant he did not come with clean hands. The injunction was refused; only maintenance of the status quo was ordered, with costs in the cause.

Key legal issues

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01

Jurisdiction of the ELC over the dispute

Holding

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

Reasoning

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.

p. 3
02

Whether the applicant was entitled to an interlocutory injunction

Holding

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

Reasoning

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.

p. 4
03

Nature of a preliminary objection

Holding

A preliminary objection must be a pure point of law, not blurred with factual details requiring proof

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Preliminary objection overruled; court found it has jurisdiction over the dispute
  2. 2.Application for injunction dismissed; applicant failed to establish a prima facie case
  3. 3.Status quo to be maintained pending the hearing and determination of the matter
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159; Article 162(2)(b) and (3)
  • Civil Procedure Act Cap 21Sections 1A, 1B, 3A, 63
  • Civil Procedure Rules, 2010Order 40 Rules 1 & 2; Order 51 Rule 1; Order 2 Rule 15(1)(a) and (b)
  • Environment and Land Court Act No. 19 of 2011Section 13(2)
  • Law of Succession Act Cap 160Section 82
  • Land Registration Act, 2012Sections 26, 30, 33, 61, 62, 71(1a) (as cited in preliminary objection)

Cases cited (3)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    (2005) eKLR
  • Giella vs Cassman Brown & Co Ltd
    1973 E.A 358
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

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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, "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.