Blython Tole Mwasi & 14 others v Sheha Khamisi Salim & Hassan Abdalla Said
The bottom line
#A Mombasa land court dismissed both sides' interim bids but froze the disputed property's status quo until the ownership trial is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection based on Sections 10 and 15 of the Wakf Commissioners Act met the Mukisa Biscuit threshold
It did not; determining whether the suit property was a validly registered Wakf required interrogation of oral and documentary evidence at a full trial, so it was not a pure point of law
The court applied the Mukisa Biscuit definition that a preliminary objection raises a pure point of law on the assumption that all facts pleaded are correct. Whether the property complied with the registration requirements of Section 10 and fell within the bar in Section 15 of the Wakf Commissioners Act depended on facts to be adduced viva voce, including the Wakf Commissioners' letter, and could not dispose of the suit preliminarily.
Whether the 5th Plaintiff established a prima facie case for a temporary injunction
No; despite claiming adverse possession since 1999, the Plaintiffs produced no evidence of payment of ground rent before 1999 or when occupation became hostile, so no apparent infringement of a right was established
Applying Mrao Ltd v First American Bank and Nguruman Limited, the court held that a prima facie case is more than an arguable case and must be established by material placed before the court. The adverse possession claim admitted the Defendants' registered ownership under Section 25 of the Land Registration Act, and the Plaintiffs failed to demonstrate when their possession became hostile, failing the first Giella limb.
Costs of the objection and application
Both the objection and the application failed, so each side bears the costs of its own unsuccessful motion
Relying on Section 27(1) of the Civil Procedure Act and the authorities that costs follow the events, the court found neither the preliminary objection nor the application succeeded, and apportioned costs accordingly in the final orders.
Legal principles established
#- A preliminary objection must be a pure point of law; where ascertainment of facts is required it fails the Mukisa Biscuit threshold
- Where no prima facie case is established, irreparable injury and balance of convenience need not be considered; the Giella limbs are applied sequentially
- Pending multiple suits over the same subject matter, the court may order preservation of the suit property under the doctrine of lis pendens
Court orders
#- 1.The Preliminary Objection by the 1st and 2nd Defendants dated 22nd April 2022 dismissed for lack of merit
- 2.The Notice of Motion application dated 17th May 2022 by the 5th Plaintiff/Applicant dismissed for lack of merit
- 3.Matter to be heard and determined within 180 days from delivery of the ruling, hearing date 25th July 2023, Mention on 8th May 2023 for Pre-Trial Conference and directions on the Originating Summons dated 6th April 2022 under Order 11 and Order 37 rule 11 of the Civil Procedure Rules, 2010
- 4.An order of status quo to be maintained based on the doctrine of lis pendens under Section 52 of the Transfer Act, the suit property to remain as it was before the filing of the suit until the suit is heard and determined
- 5.Costs of the objection to be borne by the 1st and 2nd Defendants and the 5th Plaintiff/Applicant to bear the costs of the application
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over land known as CR 2006 Plot No. MN/II/80; matter brought under the Limitation of Actions Act Cap 22
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Blython Tole Mwasi & 14 others v Sheha Khamisi Salim & Hassan Abdalla Said", Case Analysis (2023). Civil Appeal 036 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16657/eng@2023-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.