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ELCDismissedELC Suit (Nairobi) – Application dated July 14, 2022· [2023] KEELC 178 (KLR)

Sila v Al-Haiee Investments Limited & 4 others (Environment & Land Case 1030 of 2016) [2023] KEELC 178 (KLR)

Environment and Land Court
19 January 2023
3,111 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Nairobi land court refused to immediately restore a demolished property owner's possession, freezing the property instead until the full ownership dispute is heard.

What this practically means

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Executive summary

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The Plaintiff, Ferdinand Muaia Sila, moved the Environment and Land Court by Notice of Motion dated July 14, 2022 seeking to re-enter, occupy and rebuild premises demolished during an eviction of July 5, 2022, and a prohibitory injunction restraining the 1st Defendant, Al-Haiee Investments Limited, from further eviction or interference pending the hearing of his adverse possession suit. The 2nd and 3rd Defendants, contractors who claimed they entered the land in 1997 as lien for unpaid construction sums and had themselves sued for adverse possession in ELC 1234 of 2013 (dismissed for want of prosecution), supported the application. The 1st Defendant opposed, asserting the Plaintiff never had physical possession, that the property is charged to I&M Bank Limited for KShs 370,000,000, and that the wall was demolished partly due to KENHA's Nairobi Expressway works and structural weakness. The court framed a single issue: whether to grant the mandatory and prohibitory injunctions. Reviewing the authorities, it reaffirmed that mandatory injunctions at the interlocutory stage require special circumstances and an unusually strong and clear case. While the 1st Defendant's admission of demolishing the perimeter wall established a prima facie case, the court found the case not sufficiently clear for mandatory relief, noting that refusal would not prejudice the adverse possession claim since occupation could be proved by pre-demolition photographs and the limitation period runs from adverse possession to filing in 2016. The application was dismissed, but the court ordered maintenance of the prevailing status quo over LR No 209/12071/1 by all parties — no sale, alienation, charging, development, occupation or change — pending determination, with each party bearing its own costs.

Key legal issues

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01

Whether a mandatory injunction for re-entry and rebuilding could issue at the interlocutory stage

Holding

Refused; the Plaintiff's case, though disclosing a prima facie case, was not unusually strong and clear and no special circumstances were shown

Reasoning

The court traced the higher threshold for mandatory injunctions from Kenya Breweries v Okeyo, Malier Unissa Karim, Shariff Abdi Hassan and Shepherd Homes, requiring special circumstances or the clearest of cases. Although the 1st Defendant admitted demolishing the perimeter wall, the court found the Plaintiff's case insufficiently clear to justify mandatory relief restoring possession before trial.

p. 6
02

Whether refusal of the mandatory injunction would prejudice the adverse possession claim

Holding

No; adverse possession is calculated from when possession became adverse to the registered owner to the institution of suit, and occupation can be proved by photographic evidence predating the demolition

Reasoning

The court reasoned that the material period for adverse possession runs from 1995 (asserted possession) to 2016 (filing of the suit), and that evidence of occupation for that period can be established by prior photographs, so demolishing the structures does not destroy the evidentiary basis of the claim.

p. 6
03

What interim preservation order should issue

Holding

Maintenance of the prevailing status quo by all parties pending hearing and determination

Reasoning

Given the 1st Defendant's demolition of the wall, the competing claims of the Plaintiff and the Defendants, and the multiple suits over the same property, the court considered a status quo maintenance order the just interim measure, restraining sale, alienation, charging, development, occupation or any change to the property.

p. 6

Legal principles established

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  • A mandatory injunction may be granted on an interlocutory application, but normally only in the absence of special circumstances it will not be granted; it is granted where the case is clear, the act is simple and summary, or the defendant attempts to steal a match on the plaintiff
  • At the interlocutory stage the case must be unusually strong and clear before a mandatory injunction is granted, a higher standard than for a prohibitory injunction
  • Adverse possession must be proved as of right, nec vi, nec clam, nec precario, with continuous, open and unbroken possession

Court orders

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  1. 1.The prevailing status quo in respect of LR No 209/12071/1 to be maintained by all the parties pending the hearing and determination of the suit, meaning none of the parties should sell, alienate, charge, develop, occupy or change the current status of the property in any way whatsoever until the suit is heard and determined
  2. 2.Each party to bear its/his own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (interlocutory application in an adverse possession suit)

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, "Sila v Al-Haiee Investments Limited & 4 others (Environment & Land Case 1030 of 2016) [2023] KEELC 178 (KLR)", Case Analysis (2023). ELC Suit (Nairobi) – Application dated July 14, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/178/eng@2023-01-19

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