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ELCDismissedEnvironment & Land Case 58 of 2021· [2023] KEELC 198 (KLR)

Ali v Ali (Environment & Land Case 58 of 2021) [2023] KEELC 198 (KLR)

High Court of Kenya at Mombasa (bench heading not stated in the extract; the delivered-and-signed passage names Mombasa and a Judge)
24 January 2023
NMN. A. Matheka
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Winning on ownership isn't enough for an injunction in Kenya; you must also prove losses money can't fix, and this applicant couldn't.

What this practically means

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Executive summary

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The applicant, who claimed to be the legal co-owner of Plot Number MSA/Block XII/101 jointly with the Estate of Akbar Mohamed Haji Ali (Deceased), moved the court by a notice of motion dated April 5, 2022 brought under Article 40 of the Constitution, Orders 40 and 51 of the Civil Procedure Rules and sections 1A, 1B, 3A and 63 of the Civil Procedure Act. He sought interim orders restraining the respondent - the widow of the deceased and a co-administrator of the estate - from collecting rental income from the plot, an order that he collect the rent through his appointed agent and share 50% with the estate administrators, and costs. He alleged the respondent was collecting and using the rental income for her own benefit to his exclusion, violating his property rights under Article 40, and sought accounts of some 28 months of rental income. The respondent countered that all income and expenditure were accounted for, that the applicant's share had been remitted through his agents via M-pesa, and that the estate would be distributed per the Kadhi's distribution; she termed the application an afterthought and the applicant an intermeddler. Applying Giella v Cassman Brown, as refined in Mrao Ltd v First American Bank and Nguruman Limited v Jan Bonde Nielsen, the court found the applicant had established a prima facie case but had failed to demonstrate irreparable loss, since he was already receiving rent through his agent as the respondent's material showed. The application was dismissed with costs, and the parties were directed to comply with Order 11 and set the matter down for hearing.

Key legal issues

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01

Whether the applicant satisfied the Giella v Cassman Brown criteria for an interlocutory injunction

Holding

The applicant established a prima facie case but failed on the second limb of irreparable injury, so the injunction could not issue

Reasoning

The court recited the settled Giella principles and the Mrao definition of a prima facie case, then found that the respondent's material (income and expenditure account sheet, M-pesa statements and petty cash vouchers) demonstrated that the applicant was already receiving his share of rent through his agent. Because any loss was measurable and compensable in damages, the second and third limbs failed. The application was dismissed with costs and the parties directed to comply with Order 11.

p. 4
02

Whether the respondent was collecting and withholding rental income to the exclusion of the applicant as co-owner

Holding

On the material presented, the applicant was not excluded; his share was being remitted through his agents

Reasoning

The respondent deponed that all rental income and expenditure had been accounted for, that the applicant's share of the income from Mombasa/Block XII/101 after expenditure was remitted to him via his agents Dina Komba and Noormohamed Abdalla, and exhibited M-pesa statements and petty cash vouchers in support. The court accepted this as demonstrating that the applicant received rent through his agent, defeating the claimed infringement under Article 40 at the interlocutory stage.

p. 3

Legal principles established

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  • The three Giella v Cassman Brown requirements for an interlocutory injunction must be satisfied sequentially and separately; a prima facie case alone is insufficient, and the applicant must show irreparable injury not adequately compensable by damages
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and a probability of success at trial
  • An injury is irreparable only where it cannot be adequately compensated by an award of damages

Court orders

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  1. 1.The application dated April 5, 2022 is dismissed with costs
  2. 2.Parties are advised to comply with Order 11 and set down the matter for hearing

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure Rules, 2010Order 40 rules 1, 2, 3 & 4
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure ActSections 1A, 1B, 3A and 63

Cases cited (3)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    (2014) eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya 2010; Order 40 rules 1, 2, 3 & 4 and Order 51 rule 1 of the Civil Procedure Rules, 2010; sections 1A, 1B, 3A and 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, "Ali v Ali (Environment & Land Case 58 of 2021) [2023] KEELC 198 (KLR)", Case Analysis (2023). Environment & Land Case 58 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/198/eng@2023-01-24

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