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ELCAllowedLand Case 22 of 2022· [2023] KEELC 16640 (KLR)

Omar v Abushir & 4 others

Environment and Land Court
7 March 2023
LNL. L. Naikuni
7,538 words in judgment
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The bottom line

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Kenya's Environment and Land Court stopped defendants from interfering with a registered landowner's construction, confirming registered title wins at the injunction stage.

What this practically means

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Executive summary

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The Plaintiff, registered owner of LR No. Mombasa/Block XVI/714, moved the Environment and Land Court at Mombasa by Notice of Motion dated 2nd March 2022 under Order 40 Rules 1(a), 3 and 9 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a temporary injunction restraining the five Defendants from blocking, taking possession of, or interfering with his construction of a development on the suit land pending determination of the suit. The Plaintiff averred that under a Joint Venture Agreement dated 20th November 2019 he was to construct two shops and eighteen flats, sharing the completed building equally, and that in January 2022 the Defendants unlawfully occupied two flats on the first floor and frustrated completion. The Defendants, through a replying affidavit sworn by the 1st Defendant, contended they were the true owners, that the Plaintiff breached the agreement by failing to complete within 18 months, that they terminated the agreement and took possession to mitigate loss, and that the Plaintiff fraudulently obtained the building plan and transferred the title to his sole name. The court framed three issues: whether the application met the Order 40 threshold, entitlement to relief, and costs. Applying Giella v Cassman Brown as reinforced by Nguruman, it held the Plaintiff's registered title under Section 26 of the Land Registration Act established a prima facie case; that damages could not adequately compensate him; and that the balance of convenience favoured him as registered owner. The application was allowed in its entirety with a temporary injunction issued, the suit directed to be heard within 180 days, and costs awarded to the Plaintiff against the Defendants.

Key legal issues

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01

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

Holding

Yes - as registered owner under Section 26 of the Land Registration Act with an admitted joint venture agreement allegedly breached, the Plaintiff established a prima facie case

Reasoning

The court found the Plaintiff to be the legal and registered owner of the suit property and a party to an admitted joint venture agreement which the Defendants allegedly breached. Although the Defendants alleged fraud in the transfer of title and the building plan, the court found the Plaintiff's proprietary rights under Section 26 of the Land Registration Act sufficient to establish a prima facie case with a probability of success at the interlocutory stage.

02

Whether the Plaintiff would suffer irreparable harm not compensable by damages

Holding

Yes - the Plaintiff's property was at risk and could not be adequately compensated by damages

Reasoning

Relying on the title deed annexed as MMO-1, the court found the Applicant's property at risk and held that damages would not adequately compensate the Plaintiff for the encroachment of his boundary from beacon to beacon, thereby satisfying the second Giella condition.

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Balance of convenience

Holding

It tilts in favour of the Plaintiff as the legal and registered owner of the suit property

Reasoning

The court found the balance of convenience favoured the Plaintiff because he is the legal and registered owner of the land constituting the suit property, and preservation of the suit land was necessary pending trial.

p. 14

Legal principles established

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  • The three Giella conditions must all be satisfied sequentially for an interlocutory injunction
  • A registered proprietor's title under Section 26 of the Land Registration Act supports a prima facie case on an interlocutory injunction application

Court orders

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  1. 1.Notice of Motion application dated 2nd March, 2022 found to have merit and allowed in its entirety
  2. 2.Temporary injunction restraining the Defendants, their agents, assigns, workers, representatives and/or family members from interfering with the Plaintiff's construction on LR No. Mombasa/Block XVI/714 pending hearing and determination of the suit
  3. 3.Suit to be heard within 180 days from delivery of the ruling on 25th July, 2023; mention on 9th May, 2023 for Pre-Trial Conference under Order 11
  4. 4.Costs of the application awarded to the Plaintiff as against the Defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1(a), 3 and 9; Order 40 Rules 1, 2 and 4; Order 11
  • Civil Procedure ActSection 3A; Section 27(1)
  • Land Registration Act, No. 3 of 2012Section 25; Section 26
  • Constitution of KenyaArticle 40

Cases cited (7)

  • Giella – Versus - Cassman Brown & Co Ltd
    (1973) EA 358

    Locus classicus setting out the three conditions for grant of an interlocutory injunction

  • Hollander Ned Security Services Limited – Versus - Jacqueline Wangui Hill & 2 others
    [2019] eKLR

    Reiteration that applicant at interlocutory stage need only demonstrate prima facie case and irreparable damage

  • Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others
    [2014] eKLR

    Three injunction conditions are sequential hurdles; irreparable injury must be actual, substantial and demonstrable

  • Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society
    [2001] Vol. 1 EA 86

    Cited within Nguruman quote on sequential application of injunction conditions

  • MRAO Limited v First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125

    Definition of a prima facie case in civil applications

  • Mbuthia – Versus - Jimba Credit Corporation Ltd
    1988 KLR 1

    Court on interlocutory injunction weighs relative strength of parties' cases, not final findings

  • Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Limited

    Interlocutory court only considers whether applicant meets the usual criteria for injunction

Jurisdiction invoked
Order 40 Rules 1(a), 3 and 9 of the Civil Procedure Rules, 2010 and Section 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 Abushir & 4 others", Case Analysis (2023). Land Case 22 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16640/eng@2023-03-07

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