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ELCAllowedNot expressly stated in the judgment· [2022] KEELC 3669 (KLR)

Yussuf v Buxton Point Apartment Limited & another (Environment & Land Case 200 of 2021) [2022] KEELC 3669 (KLR)

Environment and Land Court
28 April 2022
LNL. L. Naikuni
8,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Mombasa protected a family's long-held plot, blocking developers until trial and confirming the case wasn't barred.

What this practically means

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Executive summary

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The Plaintiff, administrator ad litem of the estate of Hussein Ibrahim Awale (deceased), moved the Environment and Land Court at Mombasa by Notice of Motion dated 29th September 2021 under Order 40 Rules 1 and 2 of the Civil Procedure Rules and Section 63 of the Civil Procedure Act, seeking temporary injunctions restraining the Defendants from trespassing on, excavating or developing parcel Mombasa/Block XVII/1442 at Buxton, Mombasa. The deceased had held a Certificate of Lease over the 0.0832 ha parcel since 2004 and had paid rates and rents and obtained approved plans to build a hospital. The 1st Defendant, Buxton Point Limited, and the 2nd Defendant, the County Government of Mombasa, opposed, contending that the plot had been irregularly excised from public land (Buxton Housing Estate), that the sub-lease to the Plaintiff's predecessor, Brek Kalama Sheiban, was cancelled for irregular allocation and breach of terms, that the plots were consolidated into MSA/Block/XVII/1819, and that the 1st Defendant's affordable housing joint venture was confined to Plot 1821. They also pleaded res judicata, citing ELC Petition No 28 of 2020 (Munyao Sila J) and Court of Appeal Civil Appeal No E20 of 2021, which had upheld the joint venture. Framing four issues, the court applied Giella v Cassman Brown and Mrao v First American Bank, holding that the Plaintiff had established a prima facie case: cancellation of title could only be effected by a court order after full trial, with the burden on the party alleging fraud, and the Plaintiff's long-held title and legitimate expectation weighed in favour of interim protection. Res judicata failed because the earlier petition involved different parties (tenants, not title holders) and concerned the joint venture's legality, not land ownership. The court allowed the application with costs to be borne by the Defendants, declared the suit not res judicata, directed hearing within 90 days, ordered a locus in quo visit before the hearing fixed for 10th June 2022, and gave 21 days for Order 11 compliance.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The Plaintiff established a prima facie case as the deceased held a Certificate of Lease issued in 2004 and paid rates and rents; the alleged cancellation could only be tested at full trial

Reasoning

The court accepted that the deceased was allocated the parcel by the defunct Municipal Council of Mombasa, took possession, remitted rates and rents, and had approved plans to build a hospital. The Defendants' allegations of irregular allocation, missing minutes, and breach of sub-lease terms raised triable issues requiring evidence at full trial, not resolution on affidavit at an interlocutory stage. Cancellation or rectification of title must be by court order under the Land Registration Act.

p. 11
02

Res judicata

Holding

The doctrine does not apply because the parties differ and the earlier petition concerned the legality of the joint venture, not title to the suit property

Reasoning

The court applied Section 7 of the Civil Procedure Act and the IEBC v Maina Kiai elements, holding they must be satisfied conjunctively. The petitioners in the earlier ELC Petition No 28 of 2020 were tenants, not title holders, and the issue litigated was the legality of the joint venture between the 1st and 2nd Defendants. The question of title and ownership of the suit plot was not determined in those proceedings, so the bar fails at this interlocutory stage.

p. 13
03

Entitlement to interlocutory protection

Holding

Pending full trial, the Plaintiff is entitled to protection through temporary injunction

Reasoning

The court found that the question whether the Defendants followed proper procedure in cancelling and consolidating the leases required evidence based on empirical facts and documentary proof at full trial. In the meantime, the Plaintiff holding a long-standing certificate of lease and having developed legitimate expectation to construct a hospital was entitled to interim protection, and the balance of convenience tilted in favour of granting the injunction.

p. 14

Legal principles established

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  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • A certificate of title is conclusive evidence of ownership and cancellation or rectification must be by an order of court, with the burden of proving fraud on the party alleging it
  • Res judicata applies only where all its elements, including same parties litigating under the same title and a competent court's final determination, are satisfied conjunctively

Court orders

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  1. 1.The Notice of Motion application dated 29th September 2021 allowed for being meritorious with costs
  2. 2.A declaration that the suit does not offend the doctrine of Res Judicata under Section 7 of the Civil Procedure Act as the earlier ELC (Mombasa) Petition No 28 of 2020 concerned only the legality of the Joint Venture Enterprises agreement and not land ownership
  3. 3.The matter to be heard and determined within ninety (90) days from the date of the ruling
  4. 4.At least a one (1) hour site visit (Locus in Quo) prior to the full hearing scheduled on 10th June 2022
  5. 5.Parties granted 21 days to fully comply with Order 11 of the Civil Procedure Rules 2010 on case management
  6. 6.Costs of the Notice of Motion to be borne by the 1st and 2nd Defendants

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1, 2 and 3
  • Civil Procedure ActSection 63
  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 6 and 7
  • Civil Procedure Rules 2010Order 11
  • Constitution of KenyaArticles 40(6), 43, 60(b) and 64
  • Land Registration ActSections 25, 26, 28(1), 80(1) and (2)
  • Rent Tribunal ActSection 23(1)
  • Evidence ActSections 107 and 109
  • Registration of Titles Act (repealed)Section (1)
  • Land ActSections 12(8)(a) and 73(2)(a)
  • Public Private Partnership (PPP) ActNot specified

Cases cited (19)

  • Giella v Cassman Brown
    (1973) E.A. 358
  • Mbothu and Others v Waltimu and 11 others
    (1986) eKLR
  • Gitwany Investment Limited v Tajmal Limited & Others
    LR (2006) 2 PP 77
  • Nguruman Limited v Jan Bosde Nelson and 2 Others
    2014 KLR / 2014 eKLR
  • Mrao Limited v First American Bank of Kenya Limited
    (2003) eKLR 125
  • Kenya Horticultural Exporters (1977) Limited v Pape
    1986 KLR 705
  • Justus Chai Mbaru & 12 Others v County Government of Mombasa, National Land Commission & 19 Others (ELC Petition Mombasa No 28 of 2020)
  • CA No E20 of 2021 v County Government of Mombasa and 2 others
  • Abdi Mohamed Kahiya v Fatuma Haji Kasim
    (2019) eKLR
  • Munyu Maina v Hiram Gathiho Maina
    Civil Appeal No 233 of 2009
  • The Estate of Cyrus Kingori Ngotho (Deceased)
    2021 eKLR
  • Henry Mwitari v Commissioner for Lands and another
    (2017) eKLR
  • Hussein Dairy Limited v Southern Credit Banking Corporation Limited and another
    (2020) eKLR
  • Standard Chartered Bank Kenya Limited v Intercom Services Limited & 4 Others
    (2014) eKLR
  • Pop-In Kenya Limited & 3 Others v Habib Bank AG Zurich
    Civil Appeal No 80 of 1988
  • Mohamed Dado Halu v Dhadho Gaddae Godhana & 2 Others
    (2017) eKLR
  • Henry Wanyama Khaemba v Standard Chartered Bank of Kenya Limited
    Civil Case 560 of 2006
  • Kenya Electricity Transmission Company Limited v Kibotu Limited
    (2019) eKLR
  • IEBC v Maina Kiai & 5 others
    (2017) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land matters; application under Order 40 Rules 1 and 2 of the Civil Procedure Rules 2010 and Section 63 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, "Yussuf v Buxton Point Apartment Limited & another (Environment & Land Case 200 of 2021) [2022] KEELC 3669 (KLR)", Case Analysis (2022). Not expressly stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3669/eng@2022-04-28

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