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ELCPartially AllowedEnvironment & Land Case 100 of 2022· [2023] KEELC 18478 (KLR)

Halima Mohamed Abu v Mohamed Omar Athman Abafae Mohamed & 10 others

Environment and Land Court of Kenya
13 June 2023
17,389 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court froze all dealings in a disputed Mombasa plot and ordered a forensic examination of contested transfer documents while the ownership battle continues.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined two interlocutory applications in a dispute over Plot Mombasa/Block XXI/271. The Plaintiff alleged that the 1st to 10th Defendants fraudulently forged her signature on a transfer dated 30th September 2004 and re-transferred the suit property, worth about Kshs 50 million, to themselves without her consent or consideration; she sought a temporary and conservatory injunction, preservation of rental income, and an order compelling the Land Registrar to supply title documents. The Defendants denied the forgery, asserted the Plaintiff's own acquisition in 2003 was fraudulent and that she knew of the 2004 transfer, raised a limitation objection (suit filed 18 years after the transfer), and contended the claim for rent was not pleaded. They also sought an order directing the Director of Criminal Investigations to prepare a Forensic Document Examination Report. Framing three issues, the Court applied Giella v Cassman Brown as elaborated in Nguruman. It found the Plaintiff had a prima facie case given her registered title, but held she failed the irreparable-injury limb since she had lived abroad for over twenty years and damages would suffice. Nonetheless, on the balance of convenience - opting for the lower risk of injustice - the Court granted a temporary injunction restraining all dealings in the plot, preserved the property under the doctrine of lis pendens, directed maintenance of the status quo on rent collection with proper accounts, and ordered production of the title documents. It also allowed the Defendants' application, directing the DCI/Government document examiner to prepare and file a forensic report within 60 days, and fixed the matter for hearing within 180 days. Costs of both applications were placed in the cause.

Key legal issues

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01

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

Holding

Yes - the Plaintiff held a Certificate of Title registered in her name; whether it was acquired through fraud, omission or mistake were matters for full trial

Reasoning

Applying the MRAO definition of a prima facie case, the Court found that the Plaintiff's registered title over the suit property, and her allegation that the transfer to the Defendants was effected by forgery without her consent, disclosed an apparent infringement of a right calling for explanation or rebuttal. Whether the title was fraudulently acquired could not be resolved at the interlocutory stage and was reserved for trial.

p. 28
02

Whether the Plaintiff would suffer irreparable injury not compensable by damages

Holding

No - the Plaintiff had lived abroad for over twenty years, had not taken possession, and damages would adequately compensate her

Reasoning

The Court noted the Plaintiff confirmed living abroad for over twenty years and had not taken possession of the property, which was in the Defendants' occupation and from which they collected rent. Any loss could be measured and compensated by damages, so the second Giella condition failed.

p. 28
03

Where the balance of convenience lies

Holding

The balance of convenience favoured granting the temporary injunction and preserving the suit property pending trial

Reasoning

Borrowing from Amir Suleiman v Amboseli Resort, the Court opted for the lower risk of injustice. Noting it had not interrogated the full documentary history of the title's registration, the Court was convinced there was a lower risk in granting the injunction than in refusing it, and that the property was in danger of being dealt with as the Plaintiff apprehended.

p. 29
04

Whether the Court should order the Director of Criminal Investigations to prepare a Forensic Document Examination Report

Holding

Yes - document examination is routine in civil proceedings and the Plaintiff did not contest it

Reasoning

The Court held that a document examiner need not be a party to a suit, that ordering examination of a contested document is not assisting a party to build its case, and that since the Plaintiff did not contest the examination, the documents should be availed to the Government document examiner with a report filed within 60 days.

p. 30
05

Costs of the two applications

Holding

Both applications were partially allowed, so costs were ordered to be in the cause

Reasoning

Applying Section 27(1) of the Civil Procedure Act, costs follow the event, but since both the Plaintiff's and the Defendants' applications succeeded only partially, the Court exercised its discretion to place costs in the cause rather than awarding them to either side.

p. 30

Legal principles established

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  • The three Giella conditions for an interlocutory injunction are separate, distinct and logical hurdles to be surmounted sequentially
  • At the interlocutory stage the court does not make final findings of contested facts but weighs the relative strength of the parties' cases
  • Ordering a contested document to be examined by a document examiner does not amount to the court assisting a party to build its case; it is a means of ensuring justice in civil disputes
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, but remain at the court's discretion

Court orders

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  1. 1.Notice of Motion dated 8th September, 2022 found partly meritorious and allowed as prayed
  2. 2.Notice of Motion dated 6th February, 2023 found partly meritorious and allowed as prayed
  3. 3.Temporary injunction restraining, inhibiting and prohibiting all dealings in respect of Plot Number Mombasa/Block XXI/271 till further orders of the Court or inter partes hearing
  4. 4.Prayer 3 seeking a conservatory injunction allowed for purposes of preserving the suit property as against both parties from any selling and/or disposing of the suit property under the doctrine of lis pendens until conclusion of the suit
  5. 5.Status quo to be maintained in respect of collection of monthly rental income from the suit premises
  6. 6.Proper records of accounts of rental income collected from the suit property to be kept and presented as documentary evidence at the hearing
  7. 7.Defendant ordered to provide the documents as sought by the Plaintiff in the application dated 8th September, 2022
  8. 8.Order issued to the Director of Criminal Investigation to prepare a Forensic Document Examination Report on questioned documents as set out in the letter dated 30th November, 2022
  9. 9.Government document examiner to file his report in Court within 60 days from the date of the order
  10. 10.Matter to be heard and disposed of within 180 days; mention on 18th July, 2023 for Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010
  11. 11.Costs of the applications to be in the cause

Authorities

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Legislation

  • Constitution of Kenya2010 (generally)
  • Civil Procedure ActSections 1A, 1B, 3A, 27(1), 63(e)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 3, 4, 8; Order 51; Order 11
  • Registered Titles ActCap 282
  • Access to Information ActSections 21, 23(2), 23(3)
  • Land Registration ActSection 107(1)
  • Judicature ActSection 3(1)
  • Indian Transfer of Property Act (repealed)Section 52
  • Environment and Land Court ActSection 26

Cases cited (22)

  • Giella v Cassman Brown & Co Limited
    (1973) EA 358

    Conditions for grant of interlocutory injunction: prima facie case, irreparable injury, balance of convenience

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR

    The three injunction conditions are sequential hurdles; leap-frogging not permitted

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

    Definition of a prima facie case in civil applications

  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Anor
    [2015] eKLR (Nairobi Civil Appeal No. 44 of 2014)

    Prima facie case, lis pendens doctrine and preservation of suit property

  • Co-operative Bank of Kenya Limited v Catherine Kanini Kioko & 2 others
    Mombasa Civil Appeal No. 92 of 2017

    Sequential application of Giella principles and preservation of property pending trial

  • Bamburi Supermarket Limited v Rupa Gupta alias Rupa Bulbuli Bose & 3 others
    Mombasa ELC No. 165 of 2021

    Temporary injunction principles and irreparable injury in property disputes

  • Katana Nzaro Nguwa & 52 Others v Najma Ali Ahmed
    Mombasa ELC No. 204 of 2020

    Interlocutory injunction conditions and prima facie case

  • Izera Enterprises Limited v Image Font Ltd
    Mombasa ELC No. 113 of 2021

    Giella conditions and preservation of suit property

  • Juma Abdalla Kathenge & Anor v Mayport Limited
    Mombasa ELC No. 67 of 2021

    Preservation of suit property where both parties claim ownership; balance of convenience

  • Tritex Industries Limited & 3 others v National Housing Corporation & another
    (2014) eKLR

    Balance of convenience and maintaining status quo pending trial

  • Mbuthia v Jimba Credit Corporation Ltd
    [1988] KLR 1

    Court at interlocutory stage weighs relative strength of cases, not final findings

  • Edwin Kamau Muniu v Barclays Bank of Kenya Limited

    Interlocutory applications determined on usual injunction criteria, not trial issues

  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR

    Meaning of irreparable injury and balance of convenience

  • Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR

    Balance of convenience and maintaining status quo

  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR

    Court should opt for the lower rather than the higher risk of injustice

  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Another
    [2019] eKLR

    Circumstances for granting temporary injunction under Order 40 Rule 1

  • Mbogo & Another v Shah
    [1968] EA

    Circumstances in which a court will interfere with the exercise of discretion

  • Mawji v US International University & another
    [1976] KLR 185

    Doctrine of lis pendens as substantive law of general application

  • American Cyanamid v Ethicon Limited

    No claim to interlocutory relief without a prima facie case on essential points

  • Peter Kasimba & 219 others v Kwetu Savings & Credit Co-operative Society Limited & 11 others
    (2020) eKLR

    Court at interlocutory stage forbidden from deciding facts with finality

  • Bernadette Wangare Muriu v National Social Security Fund Board of Trustees & 2 Others
    [2012] eKLR

    Necessity of the doctrine of lis pendens in land matters

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

    Sequential application of the three injunction conditions

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 read with the Environment and Land Court Act (court seized of land dispute; provisions of the Civil Procedure Act and Civil Procedure Rules invoked for interim relief)

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, "Halima Mohamed Abu v Mohamed Omar Athman Abafae Mohamed & 10 others", Case Analysis (2023). Environment & Land Case 100 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18478/eng@2023-06-13

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