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ELCPartially AllowedEnvironment & Land Case 78 of 2021· [2023] KEELC 20829 (KLR)

Said Omar Said v Fauzia Mohamed Ebrahim

Environment and Land Court
27 July 2023
6,443 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (Naikuni J) determined three contested pleadings in a dispute over Title No. Mombasa/Block XVI/487: the Defendant's Notice of Motion dated 25th November 2021 seeking injunctive relief over the suit premises, the Defendant's Preliminary Objection dated 24th November 2021 (res judicata based on HCCC No. 110 of 2012, non-compliance with Section 3 of the Law of Contract Act, and limitation), and the Plaintiff's Preliminary Objection dated 20th December 2021 challenging the locus standi of Abdulrahman Hatibu, the Defendant's attorney under a registered Power of Attorney. The court framed four issues. Applying Mukisa Biscuits, it dismissed both preliminary objections because they mixed law and facts requiring evidence at full trial, particularly the validity of the Power of Attorney and the res judicata claim. On the Notice of Motion, applying Giella v Cassman Brown, Mrao Ltd and Nguruman, the court found the Defendant had a prima facie case - the Plaintiff admitted her ownership of the two ground-floor apartments and remitted rental income to her - that she would suffer irreparable loss not compensable by damages having been denied full rental income for ten years, and that the balance of convenience favoured her. The application was allowed in terms of prayers (d) and (e): injunction orders in favour of the Defendant and leave to file the Defence and Counter Claim out of time, with 21 days for the Defendant and 14 days for the Plaintiff to file corresponding pleadings. The matter was fixed for pre-trial mention on 30th October 2023 and hearing on 18th March 2024. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the preliminary objections met the Mukisa Biscuits threshold

Holding

Both objections dismissed as they mixed law and facts requiring evidence at trial

Reasoning

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.

p. 10
02

Whether the Defendant established a prima facie case for injunction

Holding

Yes - the Plaintiff admitted the Defendant owns the two ground-floor apartments and remits rental income to her

Reasoning

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.

p. 10
03

Whether the Defendant would suffer irreparable harm not compensable by damages

Holding

Yes - the Defendant has not received full rental income for ten years and the loss cannot be adequately compensated

Reasoning

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.

p. 11
04

Balance of convenience

Holding

It tilts in favour of the Defendant who is not enjoying the full rental income from the suit property

Reasoning

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.

p. 11
05

Whether the Defendant may file Defence and Counter Claim out of time

Holding

Leave granted under Order 50 Rules 6 and 7, with corresponding leave for the Plaintiff to amend

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 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. 2.Notice of Motion application dated 25th November, 2021 allowed in terms of prayers (d) and (e)
  3. 3.Injunction orders granted in favour of the Defendant
  4. 4.Filing of Defence and Counter Claim out of time allowed
  5. 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. 6.Plaintiff granted leave of 14 days to file Reply to the Defence and Counter Claim and further documents
  7. 7.Matter fixed for hearing on 18th March, 2024 with a mention on 30th October, 2023 for Pre-trial Conference
  8. 8.Each party to bear own costs of the application and objection

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3)(b)(c)(e), 162(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013Rule 23
  • Environment and Land Court Act, No. 6 of 2012Section 13
  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure Rules, 2010Order 40; Order 50 Rules 6 and 7; Order 11
  • Law of Contract Act, Cap 23Sections 3(3) and (6)
  • Limitation of Actions Act, Cap 22Section 4(1)(a)
  • Land Registration ActSection 44(1)
  • Sectional Properties Act (repealed) 1987 and Sectional Properties Act 2020

Cases cited (9)

  • Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Limited
    [1969] E.A. 696

    Definition and threshold of a preliminary objection as a pure point of law

  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR

    Scope, nature and meaning of a preliminary objection

  • Macfoy v United Africa Company Limited
    (1961) 3 All ER 1169

    An act that is void is a nullity; proceedings founded on it collapse

  • Suleiman Said Shahbal v Independent Electoral & Boundaries Commission (IEBC) & 3 Others
    (2014) eKLR

    Res judicata requires adjudication conclusively determining the rights of the parties

  • Giella v Cassman Brown & Co
    (1973) CA 358

    Principles for granting interlocutory injunctions

  • MRAO Ltd v First American Bank of Kenya Ltd & 2 Others

    Definition of a prima facie case in civil applications

  • Mbuthia v Jimba Credit Corporation Ltd
    988 KLR 1

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

  • Edwin Kamau Muniu v Barclays Bank of Kenya Ltd

    Interlocutory application determined on usual injunction criteria

  • Nguruman Limited (supra)

    Irreparable injury threshold; burden on applicant to demonstrate actual, substantial, demonstrable injury

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

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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, "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.