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ELCDismissedNot stated in the extract· [2022] KEELC 2585 (KLR)

Tsuma & another v Said (Sued on his own behalf And on behalf of the Estate of Zeyana Binti Azzan) & another (Environment & Land Case 23 of 2021) [2022] KEELC 2585 (KLR)

Environment and Land Court
7 July 2022
MOM.A. Odeny
1,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court refused to stop landowners from using their plot, ruling that squatters claiming ownership hadn't shown their case would succeed.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated December 2, 2021 by the plaintiffs/applicants seeking temporary injunctions restraining the defendants, jointly and severally, their agents and representatives, from entering, encroaching on, developing, constructing on or otherwise interfering with a plot exercised from the larger plot LR No. 159A in Malindi, pending hearing of the application and of the suit. The plaintiffs also have a pending Originating Summons seeking a declaratory order that they have acquired title by adverse possession over plot No. 159A Malindi, having allegedly lived constructively and continuously on the land for over 15 years. The defendants, through a replying affidavit of Seif Mohamed Said, asserted that the applicants' father occupied half an acre as a caretaker, that the proprietors gifted the land to the 2nd defendant school for expansion, and that the father was arrested and charged with forcible detainer in Malindi Chief Magistrate's Court Criminal Case No. E656 of 2021. Both sides filed written submissions; the applicants relied on the Giella v Cassman Brown principles, while the defendants argued that the applicants sought to restrain the registered title holders from their own land and would suffer no loss. The court, applying Order 40(1)(a) and (b) of the Civil Procedure Rules and the Giella threshold, held that the applicants failed to demonstrate any loss, the defendants were registered owners in control and occupation, and the application appeared designed to fortify the adverse possession claim. The application was dismissed with costs, with the court advising the plaintiffs to fast-track the hearing under order 11.

Key legal issues

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Whether applicants claiming adverse possession met the Giella threshold for a temporary injunction

Holding

No prima facie case established; the defendants are the registered owners in control and occupation, and the application appeared to be an attempt to fortify the adverse possession claim

Reasoning

The court applied Giella v Cassman Brown. Under Order 40(1)(a) and (b) CPR 2010, the applicant must show the disputed property is in danger of being wasted, damaged or alienated. The applicants failed to show any loss they would suffer; defendants were registered owners in occupation; the plaintiffs were directed to fast-track the suit via order 11.

p. 3

Legal principles established

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  • In an injunction application the applicant must show a prima facie case with probability of success, irreparable injury not compensable by damages, and if in doubt the court decides on balance of convenience

Court orders

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  1. 1.The application is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40(1)(a) and (b)
  • Civil Procedure Rules 2010Order 11
  • Civil Procedure ActCap. 21

Cases cited (1)

  • Giella –v- Cassman Brown & Company Ltd
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction; interim injunctive relief under Order 40(1)(a) and (b) 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, "Tsuma & another v Said (Sued on his own behalf And on behalf of the Estate of Zeyana Binti Azzan) & another (Environment & Land Case 23 of 2021) [2022] KEELC 2585 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2585/eng@2022-07-07

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