Said Omar Said v Fauzia Mohamed Ebrahim
The bottom line
#Kenya's Environment and Land Court dismissed both preliminary objections and granted an injunction protecting a co-owner's rental income pending full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objections met the Mukisa Biscuits threshold
Both objections dismissed as they mixed law and facts requiring evidence at trial
The court applied the Mukisa Biscuits definition that a preliminary objection must be a pure point of law. Determining the validity of the Power of Attorney and res judicata would require empirical documents and factual information available only at full trial, so the objections failed the threshold.
Whether the Defendant established a prima facie case for injunction
Yes - the Plaintiff admitted the Defendant owns the two ground-floor apartments and remits rental income to her
Relying on Mrao Ltd v First American Bank, the court found the pleadings showed the Defendant is owner of the two ground floors and receives rental income, with the lingering dispute being ownership of the whole property; hence a prima facie case with high chance of success existed.
Whether the Defendant would suffer irreparable harm not compensable by damages
Yes - the Defendant has not received full rental income for ten years and the loss cannot be adequately compensated
Applying Nguruman Limited, the court found the Defendant had been deprived of full rental income for a decade and the family embarrassed, amounting to continuing damage not compensable in money, satisfying the second Giella criterion.
Balance of convenience
It tilts in favour of the Defendant who is not enjoying the full rental income from the suit property
The court concluded that since the Defendant was not in enjoyment of the full rental income garnered from the suit property, the balance of convenience favoured granting the injunction to preserve the property pending trial.
Whether the Defendant may file Defence and Counter Claim out of time
Leave granted under Order 50 Rules 6 and 7, with corresponding leave for the Plaintiff to amend
The court invoked Order 50 Rules 6 and 7 of the Civil Procedure Rules, 2010 to allow the Defendant's late Defence and Counter Claim, and to balance the scales allowed the Plaintiff corresponding leave to file an Amended Plaint and Replies.
Legal principles established
#- A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
- A prima facie case in a civil application includes but is not confined to a genuine and arguable case
- In an application for interlocutory injunctions the court is not required to make final findings of contested facts and law but only to weigh the relative strength of the parties' cases
- Costs follow the event and are at the discretion of the court
Court orders
#- 1.Both Preliminary Objections (dated 24th November, 2021 by the Defendant and 20th December, 2021 by the Plaintiff) dismissed for failing to meet the Mukisa Biscuits threshold as they are not on pure issues of law
- 2.Notice of Motion application dated 25th November, 2021 allowed in terms of prayers (d) and (e)
- 3.Injunction orders granted in favour of the Defendant
- 4.Filing of Defence and Counter Claim out of time allowed
- 5.Defendant granted 21 days to file and serve Defence and Counter Claim and comply with Order 11 of the Civil Procedure Rules, 2010
- 6.Plaintiff granted leave of 14 days to file Reply to the Defence and Counter Claim and further documents
- 7.Matter fixed for hearing on 18th March, 2024 with a mention on 30th October, 2023 for Pre-trial Conference
- 8.Each party to bear own costs of the application and objection
- Jurisdiction invoked
- Articles 22, 23(3)(b)(c)(e) and 162(2) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act, No. 6 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Omar Said v Fauzia Mohamed Ebrahim", Case Analysis (2023). Environment & Land Case 78 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20829/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.