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ELCDismissedOriginating Summons dated 7th October 2021· [2022] KEELC 3145 (KLR)

Omar v Letshego Kenya Limited & 3 others (Cause 206 of 2021) [2022] KEELC 3145 (KLR)

Environment and Land Court
18 May 2022
LNL. L. Naikuni
4,340 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to block the sale of disputed family land, ruling that money compensation could adequately cover any loss.

What this practically means

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Executive summary

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The Plaintiff/Applicant, claiming to be an heir of the estate of the late Khalfan Omar Mohamed, moved the court by Notice of Motion dated 7th October 2021 under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, seeking a temporary prohibitory injunction restraining the 2nd Defendant from selling, disposing of, alienating or dealing with Plot No. Mombasa/MN/Block 1/673 pending hearing of the Originating Summons. She alleged that the 2nd Defendant, whose names are identical to the deceased registered owner's, fraudulently charged the suit property, which forms part of the deceased's estate distributable under Islamic law, to obtain a loan of Kshs. 1,200,000 from the 1st Defendant without the heirs' consent. The 1st Defendant maintained it conducted due diligence, that the 2nd Defendant was the registered title holder under Section 26 of the Land Registration Act, that no fraud was specifically proved, and that damages would suffice. The 2nd, 3rd and 4th Defendants did not participate. Framing three issues, the court found that the consent of 24th June 2019 was never adopted as an order of court; that inconsistencies in the execution of the sublease and charge, and the contemporaneous discharge of the Equity Bank charge, gave rise to a prima facie case requiring an explanation; but that the applicant failed to prove irreparable injury not compensable by damages, as she produced no death certificate or letters of administration and the property was capable of being quantified and compensated in damages. Applying Nguruman, the application was dismissed with each party bearing its own costs, and the main suit was directed to proceed to pre-trial conference.

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success

Holding

Yes - contradictions and ambiguities in the creation of the charge gave rise to a prima facie case

Reasoning

The court compared execution parts of the sublease and charge and found two different individuals named Mohamed Khalfan Omar. The title entries showed an Equity Bank charge discharged on the same day the 1st Defendant's charge was registered. These inconsistencies required an explanation from the respondents, persuading the court that a prima facie case with a high chance of success existed.

p. 7
02

Whether the applicant would suffer irreparable injury not compensable by damages

Holding

No - the applicant failed to demonstrate irreparable injury; damages would be an adequate remedy

Reasoning

Other than the consent, the applicant produced no death certificate or letters of administration to establish her standing as an heir. Even if successful, the suit property could be assessed, quantified and compensated by an award of damages, so the second limb of the Nguruman test was not met and the injunction could not issue.

p. 7
03

Status of the consent dated 24th June 2019 distributing the estate

Holding

It remained a mere agreement between the children, not an order of court, as it was not shown to have been adopted

Reasoning

The consent outlined the heirs of Khalfan Omar Mohamed and the agreement to withdraw Mombasa High Court Family Appeal No. 21 of 2017 on condition of distribution under Islamic law. However, the applicant did not demonstrate that the consent was recorded and approved by the court; the court stamp alone did not make it an order of court.

p. 7

Legal principles established

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  • A consent recorded between parties does not become an order of the court unless duly recorded and adopted by the court
  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required
  • A temporary injunction ought not to be issued where an award of damages can adequately compensate the anticipated injury

Court orders

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  1. 1.The Notice of Motion application dated 7th October 2021 is unmerited and is dismissed with no order as to costs
  2. 2.The matter to be fixed for hearing within the next Ninety (90) days from the date of the ruling
  3. 3.The matter to be mentioned on 11th July, 2022 for Pre-trial conference pursuant to Order 11 and directions on the Originating Summons dated 7th October, 2021 under Order 37 Rules 16, 17, 18 and 19 of the Civil Procedure Rules, 2010 and fixing of a hearing date
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 3
  • Civil Procedure Act, Cap. 21Sections 3 and 3A
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure Rules, 2010Order 37 Rules 16, 17, 18 and 19
  • Land Registration ActSection 26
  • Land ActSection 96
  • Land ActSection 99
  • Constitution of Kenya, 2010relevant provisions

Cases cited (5)

  • East Africa Development – Versus – Hydai Motors Kenya Limited
    Civil Appeal No. 194 of 2004 (2004) LLR, 6121
  • Mrao Limited – Versus – First American Bank of Kenya Limited & 2 Others
    (2003) eKLR; also cited as (2003) KLR 125
  • Central Bank Limited – versus – Trust Bank Limited & Others
    (1996) eKLR
  • Vijay Morjaria – Versus Nansingh Masdusingh Darbar & Another
    (2000) eKLR
  • Nguruman Limited – Versus Jan Bonde Nielsen & 2 others
    (2014) eKLR
Jurisdiction invoked
Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules, 2010 and Sections 3 & 3A of the Civil Procedure Act, Cap. 21

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, "Omar v Letshego Kenya Limited & 3 others (Cause 206 of 2021) [2022] KEELC 3145 (KLR)", Case Analysis (2022). Originating Summons dated 7th October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3145/eng@2022-05-18

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